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Samarath Lal Joshi and ors. Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition Nos. 1248 of 1981, 634, 955 of 1982, 1512 of 1983, 433 of 1984
Judge
Reported in1985(1)WLN309
AppellantSamarath Lal Joshi and ors.
RespondentThe State of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredSardar Inder Singh v. State of Rajasthan
Excerpt:
.....it is based on an arbitrary date.;(b) constitution of india - articles 14 & 16 and rajasthan service rules, 1951--rule 8(2)(a)--validity of--date of birth can be corrected if representation is made and disposed of before 24-1-1979 and cannot be corrected if disposed of after 24-1-1979--held, provision is violative of rights guaranteed under articles 14 and 16.;a government servant who had submitted his representation earlier and whose representation could not be disposed of before 24th january, 1979 on account of circumstances beyond his control, would be discriminated as against a government servant who submitted his representation subsequently but whose representation was disposed of before 24th january, 1979.;clause (a) of sub-rule (2) of rule 8 does not take note of these..........raise common questions with regard to the constitutional validity of rule 8(2)(a) of the rajasthan service rules, 1951 (hereinafter referred to as 'the rules') and, therefore, they are being disposed of by this common order.2. the petitioners in all these writ petitions are employees of the government of rajasthan and have joined the service prior to 1st january,1979 the petitioners applied for correction of their date of birth entry in their service record. in sbcw no. 634 of 1982 the aforesaid request of the petitioner was rejected by the order of the superintendent of police dated 11th august, 1981, feeling aggrieved by the aforesaid order, the said petitioner filed an appeal before the rajasthan civil services appellate tribunal, rajasthan, jaipur (hereinafter referred to as 'the.....
Judgment:

S.C. Agarwal, J.

1. These writ petitions raise common questions with regard to the constitutional validity of Rule 8(2)(a) of the Rajasthan Service Rules, 1951 (hereinafter referred to as 'the Rules') and, therefore, they are being disposed of by this common order.

2. The petitioners in all these writ petitions are employees of the Government of Rajasthan and have joined the service prior to 1st January,1979 The petitioners applied for correction of their date of birth entry in their service record. In SBCW No. 634 of 1982 the aforesaid request of the petitioner was rejected by the order of the Superintendent of Police dated 11th August, 1981, Feeling aggrieved by the aforesaid order, the said petitioner filed an appeal before the Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur (hereinafter referred to as 'the Tribunal'), but the said appeal of the petitioner was dismissed by the Tribunal on the ground that in view of the amended Rule 8 of the Rules, no correction can be made in the service book as it stood on 24th January, 1979. In other writ petitions, the representations of the petitioners for correction of the date of birth as entered in the service book were rejected by the authorities on the ground that in view of the amended Rule 8 of the Rules, such an alteration cannot be made after 24th January, 1979. The petitioners in these writ petitions have challenged the constitutional validity of Rule 8(2)(a) which was inserted in the Rules by notification dated 24th January, 1979.

3. By the aforesaid notification dated 24th January, 1979 the following amendments were made in the Rules: (i) In Rule 7, note No. 2, which was inserted by the circular of the Government of Rajasthan dated 28h April, 1958, and the Government of Rajasthan decision No. 2 appearing below subrule (1) were deleted, (ii) The existing Rule 8 was renumbered as sub-rule(1) of Rule 8. (iii) Sub-rule (2) was inserted in Rule 8. The said Sub-rule 8 of Rule 8 reads as under:

(2)(a) In relation to a person already in the service of the Government on 1-1-1979, the Service Book/Service Roll shall be accepted by the State Government as date of birth of such person irrespective of the basis or authority on which it was entered. The date of birth so recorded and accepted shall not be changed subsequently on the basis of High/Secondary/Higher Secondary School Certificate or in the first certificate issued by any Board of Education etc. irrespective of whether it is advantageous to him or not.

(b)(i) In relation to a person appointed on or after 1-1-1979 the age of a Government servant for the purpose of this Rule shall be determined with reference to the date of birth entered in the High/ Secondary/Higher Secondary School Certificate or in the first certificate issued by the Board of Education where the minimum qualification prescribed for the post under Government is Matriculation or Secondary or Higher Secondary or any other diploma or certificate recognised and declared by the Government equivalent thereto and above.

(ii) The date of birth entered in the High/Secondary/Higher Secondary School Certificate or in the first certificate issued by a Board of Education shall be mentioned in the order of appointment issued by the competent authority.

(iii) Where the minimum qualifications prescribed for appointments post under Government is below Secondary/Higher Secondary or equivalent the date of birth shall be determined with reference to the certificate of date of birth issued by the Municipality or Panchayat or School according to the entry made in their respective records, and in the event of non-availability of the aforesaid certificate, the date of birth declared by the applicant at the time of first appointment may be accepted. If the date of birth of a Government servant is not known and he is able to state the year of birth, the procedure laid down in Rule 63 of General Financial and Accounts Rules shall be followed.

(c) In case of a work charged employee who is appointed to a post under Government on account of conversion of work charged post into regular post under Government the date of birth as recorded in his Service Book/Service Roll as work charged employee shall be accepted by the Government and it shall not be subjected to any alteration.

4. As a result of Clause (a) of Sub-rule (2) of Rule 8 in respect of persons who are already in service of the Government on 1st January, 1979, the entry of the date of birth in the service roll is to be accepted & the said entry of date of birth cannot be changed subsequently on the basis of High/Secondary/ Higher Secondary School certificate or in the first certificate issued by any Board of Education etc. irrespective of whether it is advantageous to him or not. As regards the persons who joined government service on or after 1st January, 1979, provision is made in Clause (b) of Sub-rule (2) of Rule 8 for determination of their date of birth on the basis of the documents mentioned in sub-clauses (i), (ii) and (iii).

5. The case of the petitioners in these writ petitions is that Clause (a) of Sub-rule (2) of Rule 8 is violative of the right to equality guaranteed under Articles 14 and 16 of the Constitution since it arbitrarily classifies government servants into two categories, namely, those who were already in service of the Government on 1st January, 1979 and those who joined Government service on or after 1st January, 1979 and Government servants who were in service on 1st January, 1979 have been denied the right to have their date of birth recorded in their service book on the basis of their High/Secondary/ Higher Secondary school certificates even though the government servants who were appointed on or after 1st January, 1979 are entitled to have their date of birth recorded in the service book on the basis of said certificates. The submission of the petitioners in this regard is further that the aforesaid classification of government servants has been made on the basis of an arbitrary date namely, 1st January, 1979, which has no nexus what-so-ever with the object sought to be achieved by the Rules. The case of the petitioners is further that the government servants who were in service on 1st January, 1979 have further been classified into two categories, namely, those who submitted their representations before 24th January, 1979 and whose representations were accepted and an alteration was made in the date of birth as entered in the service before 24th January, 1979 and government servants who had made representations before 24th January, 1979 but on whose representations orders were not passed before 24th January, 1979 and were pending on 24th January, 1979. It has been submitted that government servants falling in the first category i.e. whose representations were accepted before 24th January, 1972, have been given the benefit of correction of the date of birth in the service record but the said benefit is not available to the second category of government servants whose representation, due to some reason beyond their control could not be disposed of before 24th January, 1979 and was pending on 24th January, 1979. According to the petitioners the said classification of government servants is dependent on the fortuitous circumstance with regard to the representation for the correction of the date of birth having been disposed of or being pending on 24th January, 1979 and classification based on the aforesaid circumstances, cannot be held to be reasonable. The petitioners have also submitted that the aforesaid classification has no nexus what so ever with the object sought to be achieved by the Rules in as much as there is no reason why a government servant should be denied an opportunity of having an error with regard to the date of birth as entered in the service record rectified while he is in service.

6. The writ petitions have been contested by the respondents. In the reply to the writ petition filed on behalf of the respondents in S.B.C.W. No. 1512 of 1983, it has been stated that the impugned amendment was made in the Rules looking to the exigencies of service and the mounting claims for the correction of the date of birth at the nick of the retirement of the employees and that the object of the rule is to curb frivolous cases regarding the correction of date of birth at the fag end of the service career of the employees.

7. As regards the right to equality guaranteed under Articles 14 and 16 of the Constitution, the law is well settled that the said right strikes at arbitrariness in state action and ensures fairness and equality of treatment. It forbids class legislation but it does not forbid reasonable classification for the purpose of legislation. In order to pass the test of permissible classification, two conditions should be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes the persons and things which are grouped together from those that are left out of the group, and (ii) differentia must have a rational relation to the object sought to be achieved by the statute in question.

8. The question which needs to be considered is whether Clause (a) of Sub-rule (2) of Rule 8 satisfies the aforesaid tests from a perusal of Rule 8, it is apparent that the said rule classified the government servant into two categories viz. (i) those who are covered by Clause (a) i.e. government servants Clause (b) i.e. government servants who were appointed on or after. 1st January 1979. As regards the government servants falling in the first category and who are covered by Clause (a) it is provided that the date of birth as recorded in the service book/service roll shall be accepted and shall not be changed after the date of coming into force of the said rule on 24th January, 1979 on the basis on High/Secondary/Higher Secondary School certificate or in the first certificate issued by any Board of education etc. irrespective of whether it is advantageous to him or not. In respect of government servants falling in the second category and who are covered by Clause (b) the age has to be determined with reference to the date of birth entered in the High/Secondary/ Higher Secondary school certificate or in the first certificate issued by the Board of Education in cases where the minimum qualification prescribed for appointment to the post under Government is Matriculation or Secondary or Higher Secondary or any other diploma or Certificate recognised and declared by the Government equivalent thereto and in cases where the minimum qualifications prescribed for appointment to the post under Government is below Secondary/Higher Secondary/or equivalent, the date of birth is to be determined with reference to the certificate of date of birth issued by the Municipality or Panchayat or school according to the entry made in their respective records and in the event of non-availability of the aforesaid certificate the date of birth declared by the applicant at the time of first appointment can be accepted. This would show that while in respect of government servants who are appointed on or after 1st January, 1979, the date of birth entered in the High/Secondary/Higher Secondary School certificate or in the first certificate issued by the Board of Secondary Education would afford the basis for the entry of the date of birth in the service record, the said certificates may be ignored for the purpose of correcting any error in the entry in the service book/ service roll of government servants who were in service on 1st January, 1979 and in respect of such government servants entry in the service book/service roll as on 24th January, 1979, whether right or wrong, has been made conclusive and it would not be subject to any alteration. In other words as a result of the aforesaid provision in Sub-rule (2) of Rule 8 the government servants who were in service on 1st January, 1979 have been placed at a disadvantageous position as compared to persons appointed in government service on or after 1st January, 1979.

9. The aforesaid classification of government servants into two categories, namely, those who were in service on 1st January, 1979 and those who joined service on or after 1st January, 1979, has been attacked by the petitioners on the ground that it is based on an arbitrary date viz. 1st January, 1979. The submission of the learned Counsel for the petitioners is that the aforesaid date is completely arbitrary and that no basis what so ever has been disclosed for prescribing the aforesaid date. In support of the aforesaid submission, the learned Counsel have placed reliance on the decision of the Supreme Court in D.R. Nim v. Union of India : (1968)ILLJ264SC , D.S. Nakara v. Union of India : (1983)ILLJ104SC and N.L. Abhyankar and Ors. v. Union of India : [1984]3SCR552 wherein the Supreme Court has struck down the classification on the ground that it was based on arbitrary date. The learned Addl. Government on the other hand his submitted that the date 1st January, 1979 prescribed in Rule 8(2) is not an arbitrary date and that the said date has been fixed for the reason that for the propose of service record the first date of the year is relevant and that in the present case 1st January, 1979 was chosen because the amendment in the Rules was introduced shortly after 1st January, 1979 on 24th January, 1979. The learned Additional Government Advocate has also submitted that it was competent for the rule making authority to fix the date for the applicability of the amended rule and the said decision of the rule making authority in fixing 1st January, 1979 cannot be held to be arbitrary. In support of his aforesaid submission, the learned Additional Government Advocate has placed reliance on the decisions of the Supreme Court in Sardar Inder Singh v. State of Rajasthan : [1957]1SCR605 , M/s Hathising . v. Union of India : (1960)IILLJ1SC and Union of India and Anr. v. M/s. Parmeshwaran Match Works etc. : 1978(2)ELT436(SC) .

10. In Union of India v. M/s Parmeshwaran Match Works etc. (supra), the Supreme Court has observed:

The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shows to be capricious or whimsical in the circumstances. When it is seen that a line or a point these must be and there is no mathematical or logical way of fixing it precisely, the decision of legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark.

11. In the present case although the date on which classification has been made, does not coincide with the date on which the amendments were introduced in Rule 8 but it is quite proximate to the date on which the amendments were introduced in as much as the amendments were introduced on 24th January, 1979 and the date that has been chosen for classification of the government servants is slightly earlier to that from 1st January, 1979. More over, the date 1st January,1979 marks the beginning of the year and in these circumstances it cannot be said that the choice of the date is capricious or whimsical so as to render the classification arbitrary and unreasonable. In my opinion, therefore, the classification brought about by Rule 8 cannot be held to be arbitrary or unreasonable on the ground that it is based on an arbitrary date.

12. The next contention that has been urged by the learned Counsel for the petitioners is that even if the governments servants may be classified on the basis of the aforesaid date the said classification cannot be upheld for the reason that it is not founded on any intelligible differentia which distinguishes the persons grouped together under Clause (a) of Sub-rule (2) of Rule 8 from those who are grouped together under Clause (b) of Sub-rule (2) of Rule 8. In this regard the submission is that date of appointment, by itself, cannot afford a rational basis for classifying government servants in the matter of ascertaining their date of birth for the purpose of entry in the service record. It has been urged that if the date of birth entered in the High/Secondary/Higher Secondary School certificate or in the first certificate issued by any Board of Education can constitute a proper basis for determination of the date of birth in respect of the persons who are appointed on or after 1st Jan., 1979, there is no reason why the same should not be treated as the basis for correction of the date of birth as entered in the service record in respect of persons who were in service on 1st January, 1979. The learned Counsel have submitted that as a result of the amendment introduced in Rule 8 is the error in the entry with regard to the date of birth in respect of persons who were in service on 1st January, 1979, would be perpetuated and would not be open to correction even though the said entry is patently erroneous in view of the date of birth as entered in the High/Secondary/Higher Secondary School certificate or in the first certificate issued by any Board of Education.

13. In my view there is considerable force in the aforesaid submission. There appears to be no rational reason why the criterion which has been laid down for determination of the date of birth of persons who were appointed in service on or after 1st January, 1979, namely the date of birth entered in the High/Secondary/Higher Secondary School Certificate or the first certificate issued by the Board of Education should not be treated as the basis for correction of the date of birth as entered in the service book/service roll of persons who were in service on 1st January, 1979. The result of the amendment introduced in Rule 8 of the Rules is that government servants who were in service on 1st January, have been denied the opportunity of having the errors regard to the entry of the date of birth in their service book/service roll corrected and the said error will be perpetuated. The only justification that has been put forward on behalf of the respondents for this amendment is that it has been made looking into the exigencies of Service and the mounting claims for the correction of date of birth at the nick of the retirement of the employees & that it is intended to curb frivolous cases regarding the correction of date of birth at the fag end of the service career by the employee. In my opinion the aforesaid reasons do not provide the justification for this differentiation amongst government servants on the basis of the date of their appointment Under Clause (a) of Sub-rule (2) of Rule 8 a blanket ban has been imposed with regard to alteration of the entry of date of birth in the Service record of all employees who were in service on 1st January, 1979 irrespective of the date when they joined service. This means that a government servant who joined service on 31st Dec, 1978 would be prevented from having the entry of his date of birth altered in service record even though he is only at the inception of his service career and has a long way to go. It is, therefore, not correct to say that the aforesaid amendment in Rule 8 would only have the effect of shutting out mounting claims for correction of date of birth at the nick of retirement of the employees. In this regard it may also be mentioned that prior to the introduction of the impugned amendment in Rule 8, there was in operation the Government of Rajasthan decision below Sub-rule (1) of Rule 7 of the Rules whereby it was laid down that no claim and request for condonation, pay fixation, changes in emoluments, correction in date of birth, changes in service history etc. which affects a person's pension would be entertained by the Government unless such claims have been made three years prior to the due date of retirement and any claim made at the time or after the retirement would be summarily corrected. In view of the aforesaid decision of the Government even before the introduction of the impugned amendment no claim for correction in date of birth could be entertained unless it was made three years prior to the date of retirement. Three years is a fairly reasonable period for the Government to take a decision on the claim of the government servant for correction of entry of date of birth. It is, therefore, not correct to say that the impugned amendment was necessary to deal with the mounting claims for correction of date of births at the nick of the retirement of employees. The said contingency was already kept under check by the Government decision referred to above.

14. The other reason that has been given by the respondents to justify the impugned amendment is curbing frivolous cases regarding the correction of date of birth, cannot also be accepted. Frivolous claims for correction of date of birth could be curbed by making provisions similar to that contained in Sub Clause (i) to (iii) of Clause (b for correction of date of birth in the service record. Moreover, merely because some government servants make frivolous claims for correction of date of birth, cannot justify a total shutting out of all claims for correction of the entry of date of birth. It is possible to visualise cases where a palpable wrong date of birth is entered in the service record of a government servant on account of clerical error on the part of the person who has prepared the service record. It is true that the service record bears the signatures of the government servant attesting about the correctness of the entries in the case, but the error may have crept in on account of illiteracy or omission to correctly check the entries in the service record, and a government servant may come to know of this error in the service record subsequently. The effect of the impugned amendment would be that the aforesaid error in the service record would be perpetuated and the government servant would be without remedy for correction of the error in the service record. The learned Additional Government Advocate has submitted that in spite of the provisions contained in Clause (a) of Sub-rule (2) of Rule 8, such an error would be open to rectification. In view of the language used in Clause (a) of Sub-rule (2) of Rule 8, I am unable to see how that would be possible. This would show that the impugned amendment would lead to perpetuation of a patent error and leaves the government servant without any remedy for correction of such an error.

15. There is one more aspect which needs to be emphasised. Amongst the government servants who were is service on 1st January, 1979 there would have been many who had submitted their representations for correction of their date of birth as entered in the service record. The representations some of them were accepted before 24th January, 1979, but representation of some them were pending on 24th January, 1979. As a result of the introduction of Clause (a) of Sub-rule (2) in Rule 8 all those representations which were pending on 24th Jan., 1979 will have to be rejected because no correction can be made in the entry about date of birth in the service record in respect of government servants who were in service on 1st Jan., 1979 after 24th Jan., 1979.The result is that amongst the government servants who were in service on 1st January, 1979 a further classification has been made classifying government servants who had submitted representations with regard to correction of date of birth in the service record before 24th, January, 1979 into two categories i.e. those whose representation were accepted before 24th January, 1979 and those whose representations were pending and were not disposed of till 24th January, 1979. The aforesaid classification is based on the fortuitous circumstance whether the representation relating to the correction of date of birth was disposed before 24th January, 1979 or not. There may be various reasons for the delay in the disposal of such representations and there may be cases where representation submitted by the government servant earlier was pending on 24th January, 1979 whereas representation made subsequently was disposed of before 24th January, 1969, and the government servant may not at all be responsible for the delay in the disposal of his representation. The result would be that a government servant who had submitted his representation earlier and whose representation could not be disposed of before 24th January, 1979 on account of circumstances beyond his control, would be discriminated as against a government servant who submitted his representation subsequently but whose representation was disposed of before 24th January, 1979, Similarly discrimination would also arise between a government who made a representation before 24th January, 1979 and whose representation was allowed and a government servant who did not make a representation before 24th January, 1979 and submitted it thereafter. In the later case the representation submitted after 24th January, 1979 would be liable to be dismissed in view of Clause (a) of Sub-rule (2) of Rule 8. This would show that merely on the basis of the fortuitous circumstance of the date of submission of the representation and the date of disposal of the representation the government servants who were in service on 1st January, 1979 are being treated differently Such a consequence would have been avoided if the rule making authority had made an appropriate provision prescribing that representations for correction of date of birth pending on 24th January, 1979 would be considered on merits and that government servant in service on 1st January, 1979 could make a representation for correction of the entry of birth in their service book/service roll within a prescribed period and representations submitted within that period would be considered on merits and that no representation would be entertained thereafter.

16. Clause (a) of Sub-rule (2) of Rule 8 does not take note of these eventualities and makes the entry about the date of birth in the service book/service roll of government servants in service on 1st January, 1979 conclusive by completely shutting out any alteration in the said entry. In my opinion the aforesaid provision is arbitrary and unreasonable and is violative of the right to equality guaranteed under Articles 14 & 16 of the Constitution and, therefore, it cannot be upheld and must be struck down. The consequence of striking down of Clause (a) of Sub-rule (2) of Rule 8, would be that all the petitioners except the petitioner is C.W. No. 634 of 1982 are entitled to have their representations for the correction of the date of birth considered no merits because all those representations were rejected in view of Clause (a) of Sub-rule (2) of Rule 8. In C.W. No. 634 of 1982 the petitioner had filed an appeal before the Tribunal and the Tribunal dismissed the said appeal of the petitioner on the ground that in view of Rule 8 as amended no alteration in entry of date of birth could be allowed after 24th January, 1979. The said petitioner is entitled to have his appeal reconsidered by the Tribunal because Clause (a) of Sub-rule (1) of Rule 8 does not stand in the way of the Tribunal making an order in favour of the petitioner.

17. In the result the Civil Writ Petition No. 1248 of 1981, S.B. Civil Writ Petition No. 634 of 1982, S.B. Civil Writ Petition No. 955 of 1982, S.B. Civil Writ Petition No. 1512 of 1983 and S.B. Civil Writ Petition No. 433 of 1984 are allowed, and the order rejecting the representations of the petitioner in these writ petitions are quashed and it is directed that the representations of these petitioners with regard to the correction of the date of birth should be reconsidered on merits without taking into consideration the provisions contained in Clause (a) of Sub-rule (2) of Rule 8 of the Rules. S.B. Civil Writ Petition No. 634 of 1982 is allowed and the order (Anx. 9) dated 28th April, 1982 of the Tribunal is set aside and the matter is remanded to the Tribunal for disposal of the appeal of the said petitioner without taking into consideration the provisions of Clause (a) of Sub-rule (2) of Rule 8 of the Rules. As the matter has been pending since long, the Tribunal should decide the appeal of the said petitioner expeditiously within a period of four months. In the facts and circumstances of case the parties are left to bear their own costs.


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