IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WP(C).No. 24633 of 2003(G) -------------------------- PETITIONER(S): --------------- V.P.DAMODARAN, S.R.NO.554562, RETIRED PRINCIPAL, SALES TRAINING CENTER, LIFE INSURANCE CORPORATION OF INDIA, KOZHIKODE RESIDING AT "POURNAMI", KAVUMBHAGAM P.O THALASSERI. BY ADV. SRI.K.T.SHYAM KUMAR RESPONDENT(S): --------------- 1. LIFE INSURANCE CORPORATION OF INDIA, REPRESENTED BY ITS CHAIRMAN, CENTRAL OFFICE, MUMBAI. 2. THE ZONAL MANAGER, SOUTHERN ZONAL OFFICE, LIFE INSURANCE CORPORATION OF INDIA, LIC BUILDING, ANNA SALAI, CHENNAI. 3. SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, KOZHIKODE. MR.S.EASWARAN, SC FOR LIC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.24633/2003 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF EXTRACT OF THE ADMISSION REGISTER OF GOVERNMENT HIGH SCHOOL FOR BOYS, PARAVANCHERY, KOZHIKODE. P2 : COPY OF EXTRACT OF CERTIFICATE ISSUED BY THE TALUK REGISTRAR OF BIRTH AND DEATHS, BADAGARA. P3 : COPY OF REPRESENTATION DATED 03/04/1996. P4 : COPY OF LETTER DATED 31/10/1997 SENT BY R3 TO THE PETITIONER. P5 : COPY OF LETTER DATED 24/11/1997 SENT BY THE PETITIONER. P6 : COPY OF LETTER DATED 02/01/1998 SENT BY R3. P7 : COPY OF LIFE INSURANCE CORPORATION OF INDIA (VERIFICATION OF DATE OF BIRTH OF EMPLOYEES) INSTRUCTIONS, 1970. P8 : COPY OF ORDER ISSUED BY THE COMMISSIONER OF GOVERNMENT OF EXAMINATIONS DATED 06/04/1998. P9 : COPY OF REPRESENTATION DATED 22/04/1998 SUBMITTED BY THE PETITIONER BEFORE R2. P10 : COPY OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF LIC. P11 : COPY OF LETTER DATED 07/11/2000 ISSUED BY R2. P12 : COPY OF APPEAL DATED 27/10/2001 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF LIC. P13 : COPY OF LETTER DATED 28/11/2001. P14 : COPY OF LETTER DATED 04/10/1995 ISSUED BY THE SECRETARY (IR) P15 : COPY OF CIRCULAR DATED 15/09/1995 ISSUED BY THE EXECUTIVE DIRECTOR OF LIC. P16 : COPY OF ORDER DATED 30/09/2002 IN CMP NO.32293/2002 IN OP NO.18893/2002. P17 : COPY OF JUDGMNET IN W.A.NO.2752 OF 1999 DATED 23/10/2002. P18 : COPY OF JUDGMENT DATED 21/01/2003 IN OP NO.18893/2002. P19 : COPY OF ORDER DATED 02/05/2003 ISSUED BYR 3. P20 : COPY OF LIFE INSURANCE CORPORATION OF INDIA (VERIFICATION OF DATE OF BIRTH OF EMPLOYEES) AMENDMENT INSTRUCTIONS, 2003 ALONG WITH COVERING LETTER DATED 01/04/2003. P21 : COPY OF ORDER DATED 14/07/1998 ISSUED BY R3. //TRUE COPY// jg PA TO JUDGE. ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.24633 of 2003 --------------------------------- Dated, this the 13th day of November, 2009 J U D G M E N T The petitioner joined the services of the Life Insurance Corporation of India (LIC for short) on 29/10/1971. At that time he produced Ext.P1, extract of his school admission register, and on that basis, his date of birth was entered in the service records as 08/09/1942. 2. The petitioner continued in service on that basis, earned promotions and on 03/04/1996, when he was working as Manager (Sales), Ext.P3 intimation was given to the Zonal Manager, informing that his date of birth has been wrongly entered in the service records as 08/09/1942 instead of 21/04/1944, and that he was making necessary arrangements to get the date corrected complying with the necessary formalities of the Education Department of the Government of Kerala. 3. It needs to be stated that way back in 1970, the Chairman of the LIC had issued Ext.P7, the Life Insurance Corporation of India (Verification of Date of Birth of Employees) Instructions, 1970, in exercise of the powers conferred under WP(C) No.24633/2003 -2- Regulation 4 of the LIC (Staff) Regulations 1960, which was framed under 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 a listed document and the employee subsequently comes in possession of another listed document which was not considered by the authority concerned while ordering the previous entry, he may submit a representation to the competent authority which may, after obtaining or procuring such explanation and documents as it may consider necessary, pass orders confirming or altering the previous entry.” The request made by the petitioner in Ext.P3 was considered and was rejected by Ext.P6 dated 02/01/1998 stating that the petitioner having got the date of birth entered in the service records, on the basis of the certificate, cannot later seek its correction and thus rewrite the contract of employment on the basis of an altered date of birth. 4. He filed an appeal against Ext.P6 to the Chairman of the LIC. During the pendency of his appeal, by Ext.P8 order dated 06/04/1998 of the Joint Commissioner of the Government Examinations, the petitioner got his date of birth in the SSLC book corrected as 21/04/1944 and produced the same before the WP(C) No.24633/2003 -3- appellate authority. However the appeal was rejected by the Chairman and the same was communicated to the petitioner by Ext.P13 dated 28/11/2001. Ext.P13 was challenged before this Court in O.P.No.18893/2002, where the LIC filed its counter affidavit relying on Ext.P15 dated 15/09/1995, a circular issued by its Executive Director amending Clause 7(2) of Ext.P7, and imposing a complete embargo on correction of date of birth in the service records. During the pendency of that original petition, the petitioner was working as Principal of Staff Training College of the LIC at Kozhikkode and while so, on 30/09/2002 he attained the age of superannuation and retired from service. On the eve of his retirement, in order to safeguard his interests, this Court passed Ext.P16 interim order clarifying that the retirement of the petitioner will be subject to the result of the original petition. 5. While so, in Writ Appeal No.2752/1999, to which the petitioner was not a party, this Court rendered Ext.P17 judgment dated 23/10/2002 taking the view that Ext.P7 instructions, having been issued by the Chairman exercising powers under Clause 4 of the 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 is illegal. Following that judgment, O.P.No.18893/2002 filed by the petitioner was disposed of by Ext.P18 judgment dated 21/01/2003 quashing Exts.P6 & P13 and directing the competent authority to reconsider the request of the petitioner. Accordingly, the matter was reconsidered and Ext.P19 order dated 02/05/2003 was issued by the 3rd respondent rejecting the request of the petitioner for correcting his date of birth. 6. In Ext.P19, three grounds are relied on for rejecting the application made by the petitioner. They are :- (1) That in terms of Clause 7(2) of Ext.P7 instructions, the request for correction can be entertained only if a listed document, other than the one on the basis of which the original entry was made, was produced. It was stated that the petitioner did not produce another listed document and therefore his request cannot be entertained. (II) That although, for making an application for correction of date of birth no period has been prescribed, the petitioner, who had entered service on 29/10/1971, made a valid request only on 06/04/1998, 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 request cannot be entertained. (III) That by Ext.P20 order dated 01/04/2003 passed by the Chairman of the LIC, Clause 7(2) of Ext.P7 instructions was amended with effect from 15/09/1995, the date on which Ext.P15 was issued. It is stated that with the amendment, correction of date of birth in the service records has been totally prohibited and for that 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 the aforesaid findings in Ext.P19 order, while the learned counsel for the LIC argued to sustain the same. 9. In so far as the first ground for rejection, that the petitioner did not produce another listed document along with his application for correction is concerned, I do not think that the said finding can be sustained. Originally, the date of birth was entered in his service records on the basis of Ext.P1 extract of school admission 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 documents listed in Ext.P8. If that be so, the petitioner having produced Ext.P8 when he sought correction, it is erroneous to say that he did not produce another listed document as provided in Clause 7(2) of Ext.P7 instructions. Therefore, this finding cannot be sustained. 10. I shall now consider whether the request could have been rejected on the ground that there has been delay in seeking correction of date of birth in the service records. Ext.P7, either before or after amendment, do not specify any time limit for making application for correction of date of birth. Although, the learned counsel for the petitioner does not dispute the fact that after entering into service on 29/10/1971, the first application that he made for correction was Ext.P3 dated 03/04/1996, he contended that so long as Ext.P7 does not provide for any time limit for making an application, it is open to an employee to seek correction of date of birth at any time of his service, and that such a request cannot be rejected as belated. He also contended that his SSLC book was got corrected only on 06/04/1998 and as his appeal was pending 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 petitioner is sought to be contradicted by the learned counsel appearing for the respondents. According to him, irrespective of whether any time limit has been prescribed in the Rules, it is open to the employer to reject an application, if it was a belated one and that too, made at the fag end of the service. 12. As could be seen from Ext.P19, it is the case of the respondents that the first valid and proper application was received from the petitioner only on 06/04/1998, and that by Ext.P3 all that the petitioner did was to intimate the Zonal Manager that there was a mistake in the date of birth entered in the service records. 13. As already seen, it was on 29/10/1971, the petitioner joined the service. Even going by his own pleadings, Ext.P3, the first application for correction of his date of birth, was made only on 03/04/1996. It is also the admitted case that he got the SSLC book corrected only on 06/04/1998, when his appeal against Ext.P6 rejecting Ext.P3 was pending. Therefore, even if Ext.P3 is accepted 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 SSLC book 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 application made at any time is liable to be entertained. Despite the absence of time limit in the Rules, it has been held by the Apex Court and this Court that if an employee wants to get his date of birth in his service book corrected, he is bound to make an application within a reasonable time. In Burn Standard Co.Ltd and Others v. Dinabandhu Majumdar and Another (1995(4) SCC 172), after pointing out the consequence of a belated entry of date of birth in the service records, the Apex Court has pointed out that if a request is made, the employer will be entitled to refuse to correct the date of birth of its employee, if the facts in the given case do not warrant such correction. Again in State of Gujarat v. Vali Mohmed (2006(3) KLT Short Notes Case No.83, page 61) the Apex Court held that if no rule or order has been framed or made, prescribing the period within which the application has to be filed, then such application must 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 the correctness of the entries in respect of date of birth of an employee in 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 has held that if no rule or order has been framed prescribing the period within which an application has to be made, then application for correction 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 on the part of public servants to approach authorities on the eve of their retirement, questioning the correctness of the entries in the service records. It has been held that, request for correction of date of 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 of date of birth cannot be claimed as a matter of right. Applying the law laid down in the aforesaid judgments to the facts of this case, it must be held that the request for correction having been made by the 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 of Birth deserves to be upheld. 16. As far as the 3rd ground of rejection, that by Ext.P20 dated 01/04/2003, Clause 7(2) of Ext.P7 was amended with effect from 15/09/1995 is concerned, the learned counsel for the petitioner contended that such retrospective amendment is impermissible. According to the learned counsel, Exts.P7 & P20 are executive instructions issued by the Chairman exercising his power under Clause 4 of the Staff Regulations, 1960, which reads as under:- “The Chairman may, from time to time, issue such instructions or directions as may be necessary to give effect to, and carry out, the provisions of these regulations and in order to secure effective control 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 with retrospective effect, according to learned counsel, Clause 4 of the Staff Regulations did not authorise the Chairman to issue instructions with retrospective effect. On this basis, it is contended that 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 be considered in the light of Clause 7(2) of Ext.P7, as it stood before the amendment. On this basis, it is argued that his request for correction of date of birth ought to have been allowed. 17. The learned counsel contended that unless the parent statute, viz. the Staff Regulations, expressly conferred power, it is not possible to issue orders with retrospective effect and placed reliance on the judgments of the Apex Court in Regional Transport Officer, 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) and Vice-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) SCC 597) it has been held that unlike a legislature, a delegate cannot exercise any power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling 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) SCC 620) has been followed, in the judgment in Vice-Chancellor, M.D.University, Rohtak v. Jahan Singh (2007(5) SCC 77). In these judgments it has been held that in the absence of specific conferment of power to issue Rules with retrospective effect, subordinate legislation cannot be given retrospective effect and the reasoning adopted is that a delegate can make rules only within the four corners of the delegation contained in the parent Act. 19. However, the learned counsel for the LIC heavily relied on the judgment of the Apex Court in T.R.Kapur and Others v. State of Haryana and Others (AIR 1987 SC 415), wherein it has been held thus:- “16. It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Art.309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect : B.S.Vadhera v. Union of India, (1968) 3 SCR 575 : (AIR 1969 SC 118), Raj Kumar v. Union of India, (1975) 3 SCR 963 : (AIR 1975 SC 1116), K.Nagaraj v. State of A.P., (1985) 1 SCC 523 : (AIR 1985 SC 551) and State of J & K v. Triloki Nath Khosla, (1974) 1 SCR 771 : (AIR 1974 SC 1). It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances 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, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Art.309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the test of Arts.14 and 16(1) of the Constitution : State of Mysore v. M.N.Krishna Murty, (1973) 2 SCR 575 : (AIR 1973 SC 1146), B.S.Yadav v. State of Punjab, (1981) 1 SCR 1024 : (AIR 1981 SC 561), State of Gujarat v. Ramanlal Keshavlal Soni, (1983) 2 SCR 287 : (AIR 1984 SC 161) and K.C.Arora v. State of Haryana, (1984) 3 SCR 623 : (1984 Lab IC 1015).” 20. The judgment in T.R.Kapur's case (supra) has been followed 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 be stated that all the three judgments relied on by the learned counsel for 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) show that the principle is well settled that if power to frame rules or its amendment is available, such power can be exercised either prospectively or retrospectively and that the only limitation is that by giving retrospectivity to a subordinate legislation, the vested rights or benefit conferred under the existing Rules cannot be taken away. This necessarily means that, under an existing regulation, if promotion has been given or a date of birth is corrected, it may not be possible for the employer to undo it, based on a retrospective amendment in the service conditions. In this case, correction has not been carried out and no benefit has been conferred on the petitioner to contend that he is deprived of any accrued benefit or vested right. This Court has, in Kunjuraman v. Central Bank of India {2007(3) KLT SN 6 (C.No.7)}, held that correction of date of birth cannot be claimed as a matter of right. In that view of the matter the petitioner cannot contend that he has any vested right in this behalf. In my view, the validity of the retrospectivity given to Ext.P20 will depend upon the nature of the order that is issued. If it can 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, but subject to the limitations mentioned in the decision in T.R.Kapur's case. But if the order is merely an executive instruction, such instructions cannot be given retrospectivity. (See paragraph 15 of the judgment in I.C.A.R. v. Satish Kumar & Another (1998(4) SCC 219). Since I have already held that the application made by the petitioner for correction of his date of birth was belated and upheld its rejection on that ground, it is not necessary to finally pronounce on the validity of retrospectivity given to Ext.P20 order. I do not find any merit in the contentions raised by the petitioner. The writ petition fails, and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg