B K SUTHAR Vs. STATE OF GUJARAT

JUDGEMENT

(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.) 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:

(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: