V C KARTHIYANI Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) THE common question arising in these original petitions is whether an aided school teacher governed by Rule 28, Chapter MV-A of the Kerala Education Rules, hereinafter referred to as KER, is also governed by Government Order dt. 30-12-1991 in the matter of seeking a correction of the date of birth in the service records and whether the retrospectivity given to the amendment of Rule 28 of Chapter mv-A by making the Government order dt. 30-12-1991 applicable with retrospective effect is liable to be struck down as arbitrary and violative of Art. 14 of the Constitution of India. Rule 28 of Chapter XIV-A of the KER provided that the date of birth on page 1 of the service book shall be entered in words as well as in figures. THE Note to that Rule stated that the date of birth shall be that entered in the school admission register, matriculation book or SSLC Book. THErefore, the service book of an aided school teacher reflected the date of birth as given in his SSLC Book. Chapter VI, Rule 3 of the KER provided for alteration of date of birth in the admission register and stipulated that the date of birth once entered in the admission register shall not be altered except with the sanction of the authority specified by the government in this behalf by notification in the Gazette. On 22-1-1972 g. O. (Ms.) No. 39/72/pd was issued stipulating that except in exceptional cases where it has been adequately made out that the concerned officer did not and could not have an opportunity to make his request, requests for correction or alteration of dates of birth of Government servants will not be allowed within two years of the date of their retirement. This was followed by another government Order dt. 16-6-1975 clarifying that the mere correction of date of birth in the school records of the Government servant does not cast any obligation on the Government to carry out that correction in the service book of the Government servant concerned as a matter of course and that the Government reserve the right to consider the merits of such cases independently taking into account the condition stipulated in G. O. (Ms.)39/72/pd, dated 22-1-1972 also. This was followed by Government order G. O. (Ms.)139/76/g. Edn. , dt. 17-7-1976 reiterating the earlier government Orders applicable to aided schools and stating that instructions issued in the Government Orders on 22-1-1972 and 16-6-1975 would be applicable to the aided school staff (teaching and non-teaching) also with effect from the date of the order subject to the provision that all pending applications will be disposed of independent of the order dt. 17-7-1976. On 30-12-1991 G. O. (P) 45/91/p&ard was issued by the Government by which it was provided that applications for correction of the date of birth in the service records must be made within five years of entry into service. A locus poenitentiae of one year was given to those who had not applied within five years of their entry into service to make applications for correction. It was also provided that all appointment orders issued thereafter should also mention the time-limit provision for getting the date of birth corrected in the service records fixed as five years by the concerned Government order. Meanwhile Rule 28 of Chapter XIV-A of the KER was amended by G. O. (P) 104/84/g. Edn. , dt. 11-6-1984. It was provided that once the date of birth has been accepted and recorded in the service book it shall form conclusive evidence of the same in respect of all future transactions on the matter. THE Note as amended provided for making alteration to the entry relating to date of birth in the service book subsequently, as per the procedure laid down in the case of Government employee under G. O. (Ms)39/72/pd, dt. 22-1-1972 andg. O. (Ms)123/75/pd, dt. 16-6-1975 which were made applicable to aided school staff (teaching and non-teaching as per g. O. (Ms)/139/76/g. Edn. , dt. 17-7-1976 and provided that the conditions stipulated in these Government orders in regard to correction of date of birth shall be applicable to aided school staff as well. A proviso was also added to the effect that the date of birth once entered and duly attested by the Educational Officer under Rule 29 of Chapter XIV-A of KER shall be changed only under sanction obtained from Government. Question arose whether the Government Order G. O. (P)26/9/91/p&ard, dt. 30-12-1991 applied to the correction of date of birth of aided school teachers. In O. P. 3142 of 1997 a learned single Judge of this Court held that as per the abovesaid Government order an application for correction of date of birth must have been filed within one year from the date of that Government Order and the Government was justified in rejecting an application made by a Headmistress after expiry of one year from the date of that order. This decision was challenged in appeal in w. A. 577 of 1997. A Division Bench to which one of us was a party (Mr. Justice Hassan Pilla i ) relying on the decisions in Union of India v. C. Ramaswamy 1997 4 scc 647 : (AIR 1997 SC 2055) and Joseph v. State of Kerala 1998 2 Ker LT 217 : (1998 Lab IC 3108) held that an application for correction of date of birth must have been filed within one year from the date of the Government order dt. 30-12-1991 and the learned single Judge was right in dismissing the original petition since the application for correction in that case had been made be-yond the period of one year from the Government order dt. 30-12-1991. Another learned single Judge meanwhile had held in O. P. 13417 of 1994 that in the light of the Note to Rule 28 of Chapter XIV-A KER, it had to be held that the Government order dt. 30-12-1991 not having been referred to in the said Note was not applicable to aided school teachers and an application made by an aided school Headmistress ought to be reconsidered in terms of the Note to Rule 28 of Chapter XIV-A of KER. In this situation Rule 28 was amended by G. O. (P)70/99/g. Edn. , dt. 22-3-1999. Rule 1 of the Amendment Rules provided that the Rules shall be deemed to have come into force on 30th day of December, 1991, the date of the government order G. O. (P)45/91/p&ard. Rule 28 of Chapter XIV-A was amended by adding G. O. (P)45/91/p&apd dt. 30th December, 1991 also to Note 1 thus adopting the view taken in O. P. 3142 of 1997 as affirmed in W. A. 577 of 1997 and to clarify that the Rule as amended had retrospective effect from 30-12-1991. In other words by the amendment it was clarified that G. O. (P) No. 45/91/p&ard d t. 30-12-1991 must be taken to be applicable in the case of aided school techer s also right from the date of that notification. Th e petitioners in these cases are Headmasters of aided schools who had not made applications for correction of their date of birth in the service record either within five years of their entry into service or within one year of 30-12-1991 the date of the issuance of g. O. (P)45/91/p&ard. THEse petitioners contended that going by Rule 28 of chapter XIV-A of KER as it existed until its amendment by SRO No. 262/99 g. O. (P)45/91/pard did not apply to teaching and non-teaching staff of aided schools and hence there was no obligation on them to make an application for correction of their dates of birth in the service records either within five years of their entry into service or within one year of 30-12-1991, the date of issue of G. O. (P)45/91/p&ard. THEy also challenge the amendment of the Rule brought about by SRO 262/99 by attacking the retrospectivity given to the amendment to be effective from 30-12-1991 on the ground that by making the rule retrospective they had been asked to do the impossible and hence the rule was unreasonable, arbitrary and violative of Art. 14 of the Constitution of India. What is argued is that to be told on 22-3-1999 that they ought to have applied within one year of 30-12-1991 was unreasonable and unjust and it was something that was impossible of performance and thus it was that the rule operated unreasonably and irrationally and should be found to be violative of Art. 14 of the Constitution. It is contended on behalf of the Government that under S. 36 of the Kerala Education Act, 1958 there was authority to make rules and there was authority to make rules retrospectively and hence it cannot be contended that the rule made retrospectively is invalid. Learned government Pleader also submitted that what was sought to be done was to remove a discrimination that was patent if the argument of the petitioners were to be accepted in that whereas the Government school teachers along with other government servants had to apply within one year of G. O. (P)45/91/p&-ARD to have secured the benefit if they had not applied within five years of their entry into service, the aided school teachers were placed in unduly favoured position of being in a position to apply at any time just two years prior to their projected retirement to have the date of birth corrected in the service records. Learned Government pleader submitted that this was unduly advantageous to the aided school teachers and clearly discriminatory since they were not better placed than Government school teachers whose method of selection was more rigorous than that of the aided school teachers and that anomaly had to be removed by amending Rule 28 of chapter XIV-A of the KER with retrospective effect especially in the light of the view taken by a learned single Judge in O. P. 13417 of 1994. Counsel also submitted that correction of date in service records was governed by Government orders including G. O. (P)45/91/p&ard and a number of teachers of aided schools and other members of the staff of aided schools had taken advantage of that Government Order and the petitioners cannot complain because it was due to their own failure to apply in time that they could not get their dates of births corrected if they were otherwise entitled to do so. Once there was power to enact a rule with retrospective effect and that power had been used to remove an anomaly and to place all teachers on par, it could not be held that the Rule was unconstitutional or that it was arbitrary and unreasonable and hence violative of Art. 14 of the Constitution of India. Learned counsel for the petitioners relied on Indian Express News Papers v. Union of india, AIR 1986 SC 515 to contend that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Counsel contended that a rule can be struck down as arbitrary in the light of the aspects referred to in paragraphs 73 to 75 of that decision. In those paragraphs their Lordships referred to the decision of Diplock , L. J. in Mixnam Properties Ltd. v. Chertsey U. D. C. 1964 1 QB 214, to an article in 36 Modern Law Review 611 by Prof. Alan Wharam , to a passage from W. H. R. Wade on Administrative Law and laid down that in India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that It is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Art. 14 of the Constitution. Counsel also relied on the decision of the Division Bench in Pankajaksy v. George Mathew 1987 2 Ker LT 723 where speaking for the bench Bhaskaran Nambiar ,j. held that the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vire s of the Act, the Court can go into the question (a)whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c)whether it is 'unreasonable' to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules. THE main contention urged by counsel for the petitioners is that the rule is illegal because of the fact that it was introduced by S. R. O. 262/99 dated 22-3-1999. THE rule envisages the making of an application by a member of the staff of an aided school within one year of 30-12-1991. This postulates an impossibility and therefore the Rule must be held to be unreasonable thus violative of Art. 14 of the Constitution. THEre was no serious argument that in terms of S. 36 of the Keral a Education Act there was no power to make a Rule with retrospective effect. Nor was there any argument that the Rule was one which ran counter to any of the provisions of the Act. We find considerable force in the argument of learned Government pleader that if the Rule had not been retrospectively amended it would have led to an anomalous situation where all those in service other than the staff of an aided school would have to make an application for correction within five years of their entry into service or within one year after the Government order d t. 30-12-1991. But the staff of the aided school alone would have the privilege of not having the obligation to do so they being in a position to wait until two years prior to their date of retirement and that would have brought about an unjust result by discriminating one set of employees against the rest of the employees in general and against even staff of Government schools. THE amendment has therefore only achieved the object of making the rules for correction of service records relating to date of birth of aided school teachers on par with the rest and from that point of view we are satisfied that it could not be termed either arbitrary or unreasonable. We may also notice that the Division Bench in W. A. 577 of 1997 had in fact applied the Government order dt. 30-12-1991 to teachers of aided schools and apparently there was not even a contention in that case that the said government order had no application. THE anomaly was highlighted because of the view adopted in the judgment in O. P. 13417 of 1994 resulting in conferment of an undue benefit on the staff of aided schools and in that context it could not be said that the amendment brought about to Rule 28 of Chapter XIV-A of KER with retrospective effect is either unreasonable or arbitrary. We find that the amendment was consonant with doing justice to the service in general and could not be termed as arbitrary or inequitable. We may also notice that the right to take advantage of a statute or a provision is by itself not a vested right. This is clear from the decision in Abbott v. Minister of Lands 1895 AC 425 and the decision of the Full Bench in Echuma Amma v. Devassy , 1970 Ker LT 204. It cannot therefore be said that the petitioners herein had any vested right to apply for correction just before two years of their retirement from service as per the entry of date of birth in the service records. THE argument that a right had vested in the petitioners cannot therefore, be accepted. One further argument was raised particularly by the petitioner in O. P. 12860 of 1999. It was contended on behalf of that petitioner that the judgment in O. P. 13417 of 1994 was rendered in an original petition filed by that petitioner and at least in respect of that case respondents were bound by that decision and they could not rely on the amended Rule to hold that the petitioner therein was also not entitled to maintain her application for correction. But the rival claimants in that case who are also the petitioners in O. P. 29857 of 1999 pointed out that petitioner No. 1 in O. P. 29857 of 1999 who had already been appointed on the basis that petitioner in O. P. 12860 of 1999 had retired was not impleaded in O. P. 13417 of 1994 which was filed subsequent to the appointment of petitioner No. 1 in O. P. 29857 of 1999 as headmaster and hence the decision in O. P. 13417 of 1994 was not binding on petitioner No. 1 in O. P. 29857 of 1999. Learned Government pleader pointed out that the legislature had the power to make a retrospective law or even to take away the foundation of a judgment rendered by the Court and if so viewed, amendment of Rule 28 brought about by SRO 262/99 has removed the foundation on the basis of which judgment in O. P. 13417 of 1994 was rendered and when pursuant to the order in O. P. 13417 of 1994 the matter was reconsidered, the reconsidering authority could not ignore the amendment brought about by S. R. O. 262/99 and in that view nothing turned on the direction issued in O. P. 13417 of 1994. Learned Government pleader relied on various decisions including the one in S. S. Bola v. B. D. Sardan a AIR 1997 SC 3127. We are inclined to agree with the petitioners in O. P. 29857 of 1999 that their positions cannot be affected by the decision in O. P. 13417 of 1994 since petitioner No. 1 therein had been appointed as Headmaster in the place of the petitioner in O. P. 13417 of 1994 even before that petitioner approached this court with O. P. 13417 of 1994. We are also inclined to the view that because of the retrospective amendment of the Rules which governs the authority called upon to make the correction, it could not be said that the said authority can ignore the Rule as amended and proceed to grant relief to the petitioner in o. P. 13417 of 1994 and that too at the expense of the rival claimant, first petitioner in O. P. 29857 of 1999. We are therefore, not in a position to accept that argument raised on behalf of the petitioner in O. P. 12860 of 1999. Learned counsel for the petitioner in O. P. 12860 of 1999 alternatively submitted that the one year period referred to in the Government order d t. 30-12-1991 can be understood as one year from the date of the introduction of the amendment to Rule 28 of Chapter XIV-A of KER by SRO 262/99 and it should be held that applications filed within one year of 22-3-1999 are in time. We are not satisfied that there is any warrant for any such reading down of the Rule. We have found that the Rule is intra vires the Act. Under such circumstances we must give full effect to the Rule. We have also noticed that the Rule has not brought about any unjust result. On the other hand it has only removed an anomaly or a discrimination that might have arisen between teachers of Government schools and teachers of aided schools. We are, therefore, satisfied that there is no circumstance which would Justify our reading down the rule as propounded by learned counsel for the petitioner in o. P. 12860 of 1999. THEre is no dispute that the petitioners in O. P. 12860 of 1999 and O. P. 14649 of 1999 and O. P. 15341 of 1999 had not made applications for correction within the time provided by law. It is, therefore, clear that those petitioners are not entitled to any relief in these original petitions. Those three original petitions are liable to be dismissed. Coming to O. P. 29857 of 1999, it is necessary to direct the Assistant Educational Officer to reconsider the claim of the Manager of the school for recognition of the appointment of petitioners 1 and 2 in that original petition in the light of our decision in the other three original petitions. THE order Ext. P4 is therefore, liable to be quashed and respondent no. 2 in that original petition is liable to be directed to reconsider the request contained in Ext. P3 in accordance with law. I n the result we dismiss O. P. 12860, 14649 and 15341 of 1999. We make no order as to costs. We allow O. P. 29857 of 1999 to the extent of quashing the order or communication Ext. P4 and direct the second respondent-Assistant Educational officer to reconsider the request of the Manager contained in Ext. P3 in that original petition in accordance with the relevant provisions of KER. We make no order as to costs. Order accordingly. . .