Gujarat High Court
State Of Gujarat & 2 vs R.K.Patel on 11 August, 2016
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/631/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 631 of 2016
In SPECIAL CIVIL APPLICATION NO. 12898 of 2013
With
CIVIL APPLICATION NO. 6389 of 2016
In
LETTERS PATENT APPEAL NO. 631 of 2016
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STATE OF GUJARAT & 2....Appellant(s)
Versus
R.K.PATEL....Respondent(s)
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Appearance:
MR UTKARSH SHARMA, AGP for the Appellant(s) No. 1 - 3
SHIVANI RAJPUROHIT, CAVEATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 11/08/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Clause 15 of the Letters Patent by the appellants - original respondents, wherein the appellants have challenged the order dated 09.03.2016 passed by learned Single Judge in Special Civil Application No.12898 of 2013 by which learned Single Judge has allowed the petition.
2. Brief facts leading to filing of the present appeal are as under:
2.1. It is the case of the petitioner that he was Page 1 of 11 HC-NIC Page 1 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER appointed as Range Forest Officer on 08.07.1983.
Thereafter, he was posted at Kukavav and joined the duty on 21.07.1983. At the time of joining the service, due to mistake, the date of birth of the petitioner was recorded in the service record as 01.05.1958 based on SSC certificate. However, the correct date of birth of the petitioner, as per the Birth and Death Register is 12.10.1959. When the petitioner came to know about the date of birth which is recorded in the service record as 01.05.1958, he submitted an application on 01.09.1986 to his superior officer i.e. the Deputy Conservator of Forest for correction of the date of birth from 01.05.1958 to 12.10.1959. However, thereafter various correspondence took place between the various authorities. Ultimately, the respondent No.3 - present appellant No.3 addressed a communication to the petitioner on 09.06.2008 wherein it has been stated that the petitioner had not made application for change in the date of birth within prescribed time limit as per the provisions contained in Rule 40 of the Gujarat Civil Service (General Conditions of Service) Rules, 2002 (hereinafter referred to as 'the Rules of 2002' for short) and therefore his application is rejected.
2.2. Petitioner, therefore, made a representation to the higher authorities along with the copy of birth and death register. However, his Page 2 of 11 HC-NIC Page 2 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER representation was not entertained and respondent No.2 informed the petitioner on 20.02.2013 that no action is required to be taken on his representation. Petitioner has, therefore, filed the aforesaid petition before this Court. Learned Single Judge, after considering the material on record allowed the petition and thereby held that the original application filed by the petitioner for correction of the birth date is well within the time period prescribed in the Rules and the appellants - original respondent authorities were directed to look into the material which are on record and thereafter effect necessary correction in the service record. Appellants - original respondents have, therefore, filed the present appeal.
3. Heard learned Assistant Government Pleader Mr. Utkarsh Sharma for the appellants - original respondents and learned advocate Ms. Shivani Rajpurohit for the respondent - original petitioner - Caveator.
4. Learned Assistant Government Pleader mainly relied upon Rule 40(2) of the Rules of 2002. Clause (g) of Rule 40(2) of Rules of 2002 provides that a request of alteration of date of birth should not be entertained after the preparation of the service book of the Government employee and in any event not after the completion of the probation period or five years Page 3 of 11 HC-NIC Page 3 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER continuous service, whichever is earlier. It is further provided that in the case where there is no probation period, such request should not be entertained after the completion of 5 years continuous service.
5. Relying upon the said provision, it is urged that admittedly the petitioner has joined the service on 21.07.1983 as Range Forest Officer and thereafter he has submitted an application for change of his birth date on 01.09.1986 i.e. after a period of 3 years and 2 months. At this stage, it is further submitted that there is a provision under the Recruitment Rules of Ranegers that a candidate selected shall be appointed to the post of Ranger on probation for a period of two years from the date of appointment. Thus, when there is a specific rule providing probation period of 2 years, the petitioner ought to have submitted an application within stipulated time limit. However, when he has submitted the application after a period of 3 years and 2 months from the date of his appointment, the appellants have rightly not entertained the request of the petitioner on the ground of delay in submitting an application for correction of date of birth. It is further contended that request made at the fag end of retirement for change of birth date is not required to be entertained as per the settled law laid down by the Hon'ble Supreme Court and this Court. The petition was filed in the year Page 4 of 11 HC-NIC Page 4 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER 2013 and therefore the learned Single Judge ought not to have entertained the petition. Hence, present appeal be allowed.
6. Learned AGP has placed reliance upon the Ranger (Subordinate Forest Service) (Special) Recruitment Rules, 1973 (hereinafter referred to as 'the Rules of 1973') as well as Ranger (Subordinate Forest Service) (Special) Recruitment Rules, 1977 (hereinafter referred to as 'the Rules of 1977') and submitted that in the said Rules, probation period of two years has been prescribed for the post of Ranger.
7. In support of his contentions, learned AGP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Gujarat v. Vali Mohmed Dosabhai Sindhi, reported in (2006) 6 SCC 537.
8. On the other hand, learned advocate Ms. Shivani Rajpurohit appearing for the respondent - original petitioner supported the reasoning given by the learned Single Judge and submitted that there is no probation period prescribed in the Rangers (Subordinate Forest Service) Recruitment Rules, 1969 (hereinafter referred to as 'the Rules of 1969' for short). The said Rules are produced at page 134 of the compilation by the respondent along with the affidavit-in-reply. Thus, it has been submitted that when no period Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER of probation has been prescribed in the Recruitment Rules, which was applicable at the time of appointment of the petitioner, the respondents are not empowered to reject the application made by the petitioner for change of birth date in the service record. The petitioner has submitted an application within a period of 5 years from the date of his appointment.
9. Learned advocate Ms. Shivani Rajpurohit appearing for the respondent - original petitioner submitted that learned Assistant Government Pleader has wrongly placed reliance upon the Rules of 1973 as well as the Rules of 1977. The said Rules are framed for a particular purpose and they were remained in force for a particular period only. Learned advocate referred to the said Rules which are annexed with the affidavit-in-reply and submitted that the said Special Rules are not applicable to the case of the petitioner and the case of the petitioner is governed by the Rules of 1969. In Rules of 1969 there is no provision for probation period.
10. It is further contended by the learned advocate for the original petitioner that though the application was submitted by the petitioner in the year 1986, the same was decided for the first time after a period of 22 years i.e. in the year 2008. Even thereafter the petitioner made various representations. However, lastly it was Page 6 of 11 HC-NIC Page 6 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER informed to the petitioner in the year 2013 that his request is not entertained and therefore immediately the petition was filed and therefore, there is no delay in filing the petition as alleged by the appellants. It is further submitted that it is not proper on the part of the learned Assistant Government Pleader to contend that petitioner has submitted an application at the fag end of his retirement. In fact after joining the service, petitioner immediately submitted an application within a period of 3 years and 2 months. Hence the decision upon which the petitioner has placed reliance upon is not applicable to the facts of the present case. Learned advocate, therefore, requested that present appeal be dismissed.
11. Having heard the submissions advanced on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, it emerges that the petitioner was appointed as a Range Forest Officer on 08.07.1983 and he joined at Kukavav on 21.07.1983. As per his service record, his date of birth is 01.05.1958, whereas as per the case of the petitioner, his correct date of birth is 12.10.1959. When the petitioner came to know about the same, he submitted an application on 01.09.1986 for correction of the said birth date. Thus, admittedly the petitioner has submitted an application after a period of 3 years and 2 Page 7 of 11 HC-NIC Page 7 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER months from the date of his appointment. It is further revealed from the record that the said application was not decided by the appellants for a period of almost 22 years and the decision was taken in the year 2008 that the application given by the petitioner for change of birth date was after the probation period of 2 years and therefore the same is not required to be entertained. Once again, the petitioner made representations to the respondent authorities and pointed out from the birth and death register that his correct date of birth is 12.10.1959. It is his specific case that in the school record, it is wrongly recorded as 01.05.1958 and on the basis of the school record the birth date was entered in the service record. In spite of the fact that register of birth and death was produced, the said request of the petitioner was not entertained only on the technical ground.
12. At this stage, it is also relevant to note that looking to the genuine case of the petitioner, the Forest Department recommended the case of the petitioner positively to the General Administrative Department. The said fact is observed by the learned Single Judge in the impugned order which is not denied by the learned AGP. The Forest Department after verification of the entire record made such recommendation to the General Administrative Department. However, the General Administrative Department rejected said Page 8 of 11 HC-NIC Page 8 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER proposal only on the ground that the application was time barred. Thus, in the aforesaid facts and circumstances, it is required to be considered whether probation period of 2 years was prescribed in the concerned recruitment Rules or not.
13. If the Rules of 1969 produced at page 134 of the compilation is carefully seen it is clear that no period of probation for the post of Rangers has been prescribed in the said rules. The reliance placed by the learned AGP on the rules of 1973 and the rules of 1977 is misconceived. We are of the opinion that the aforesaid rules are framed for a special purpose and therefore it was mentioned as the Ranger (Subordinate Forest Service) (Special) Recruitment Rules. Even in the Recruitment Rules of 1977 it has been specifically observed that the said rules shall remain in force till 31.12.1977. It is not in dispute that the petitioner was appointed in the year 1983 i.e. much after the validity period of Recruitment Rules of 1977 and at that time General Rules of 1969 were in force. In the said Rules, no period of probation is prescribed. Thus, in the aforesaid factual background of the case, if Rule 40(2)(g) of the Rules of 2002 is examined, the said rule provides as under:
"40 Procedure for writing the events and recording the date of birth in the service Page 9 of 11 HC-NIC Page 9 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER book:
xxx xxx xxx (2) While recording the date of birth, the following procedure should be followed -
xxx xxx xxx
(g) requests for alteration of date of birth should not be entertained after the preparation of the service book of the Government employees concerned and in any event not after the completion of the probation period or five years' continuous service, whichever is earlier. In the case where there is no probation period, such request should not be entertained after the completion of five years' continuous service."
14. In the present case, the application for change of birth date was submitted within a period of 5 years and therefore it cannot be said that the said application was time barred. It is also relevant to note that though the application was made in the year 1986, the said application was decided for the first time in the year 2008 i.e. after a period of 22 years. Once again, representation was made and ultimately when it was not entertained in the year 2013, the petitioner filed the petition in the year 2013. Thus, in the facts of the present case, the decision rendered by the Hon'ble Supreme Court in the case of Vali Mohmed Dosabhai Sindhi (supra) is not applicable. It cannot be said that the Page 10 of 11 HC-NIC Page 10 of 11 Created On Fri Aug 12 03:47:22 IST 2016 C/LPA/631/2016 ORDER petitioner has made the request at the fag end of the retirement.
15. In view of the aforesaid discussion and in view of the reasoning given by the learned Single Judge, we are of the considered opinion that this is not a fit case which calls for any interference by this Court. Accordingly, the present appeal being devoid of any merit stands dismissed.
16. In view of dismissal of the main appeal, civil application does not survive. Accordingly, it is disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 11 of 11 HC-NIC Page 11 of 11 Created On Fri Aug 12 03:47:22 IST 2016