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2019 DIGILAW 388 (JK)

IRA Leo v. State of J&K

2019-08-19

DHIRAJ SINGH THAKUR, SINDHU SHARMA

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JUDGMENT : Dhiraj Singh Thakur, J. OWP No. 560/2011 1. The following question of law framed in terms of proviso (b) to Rule 30 of the Jammu & Kashmir High Court Rules, 1999 has been referred to us for determination:- “Whether the amendment brought out under Section 13 of the Jammu & Kashmir Civil Services Decentralization and Recruitment Act, 2010 by virtue of Jammu & Kashmir Civil Services Decentralization and Recruitment (Amendment) Act, 2013 is retrospective or only prospective in nature.” 2. With a view to answer the question, so referred, it is necessary to briefly notice the material facts of the case. 3. The petitioner was originally a resident of Ward No. 10, in District Kathua. She completed her education from the said district. A Permanent Resident Certificate (PRC) was issued in her favour in the year 1987, reflecting her to be a resident of District Kathua. Upon completion of her studies, in the year 2010, the petitioner married one Kulbir Singh, who was a resident of District Rajouri. After the marriage of the petitioner, an advertisement notice No. 07 of 2010 dated 12.11.2010 was issued by the J&K Services Selection Board (SSB), inviting applications inter alia for the post of Teachers in District Rajouri. According to the said notification, last date prescribed for receipt of application forms was fixed as 21.12.2010. The petitioner also submitted her application form but was not permitted to face the interview purportedly on the ground that she was not a resident of District Rajouri. 4. According to the notification No. 07 of 2010, selection was to be made strictly in terms of the Jammu & Kashmir Civil Services Decentralization and Recruitment Act, 2010 (in short “Act of 2010”) and the rules framed thereunder. Section 6 of the Act of 2010 inter alia envisaged that a person would be eligible for appointment to a District Cadre post only if he was a resident of the concerned District and possessed the requisite qualification, eligibility and experience prescribed for the post. Section 13 of the Act of 2010 defined “Residence” as under:- “13. Residence:- (1) A person shall be deemed to be resident of a particular District or Division if he/she has resided in such District or Division. Section 13 of the Act of 2010 defined “Residence” as under:- “13. Residence:- (1) A person shall be deemed to be resident of a particular District or Division if he/she has resided in such District or Division. as the case may be, for a period of not less than 15 years before the date of applying for a particular post and is actually residing in the said area. (2) Notwithstanding anything contained in sub-section (I), a person shall not be disentitled from claiming the residence in a particular District or the Division only on the ground that his/her father/mother or the person on whom he/she is dependent is living in a place outside the said District or the Division, as the case may be, on account of his/her employment, business, profession, vocational reasons or temporary dislocations from his/her original place of residence due to security reasons. (3) Notwithstanding anything contained in sub-section (I), the candidates applying under Scheduled Caste Category for any post in the Divisional or District Cadre shall, irrespective of their place of residence in the State, be eligible for selection against the posts reserved for the said category at such selection.” 5. Since the selection authority did not permit the petitioner to appear in the interview, the present petition was filed in which a Coordinate Bench of this Court vide order dated 28.04.2011 directed the respondents to permit the petitioner to appear in the interview and participate in the selection process at her own risk and responsibility. It was made known that no right would flow to the petitioner on account of her mere appearance in the interview or participating in the selection process. 6. From the above, it can be seen that the petitioner was clearly ineligible for appointment in terms of the aforementioned notification No. 07/2010. This is admitted even by the counsel for the petitioner. However, the basis of claiming a right of consideration is the amendment that was incorporated to Section 13 by way of Jammu & Kashmir Civil Services Decentralization and Recruitment (Amendment) Act, 2013 notified on 22.03.2013, which reads as under:- “2. This is admitted even by the counsel for the petitioner. However, the basis of claiming a right of consideration is the amendment that was incorporated to Section 13 by way of Jammu & Kashmir Civil Services Decentralization and Recruitment (Amendment) Act, 2013 notified on 22.03.2013, which reads as under:- “2. Amendment of Section 13 Act XVI of 2010 – In Section 13 of the Jammu & Kashmir Civil Services Decentralization Act, 2010, after sub-section(3), the following sub-section shall be inserted, namely:- (4) Notwithstanding anything contained in sub-section(1), if a woman marries outside her District/Division, the period of residence of 15 years under the said sub-section(1) shall not operate as a bar for applying to a post provided that her husband has resided in that District/Division, as the case may be, for a period not less than 15 years.” 7. It was urged that even when the amendment was incorporated in the year 2013, much after the last date of submission of application forms, yet since the amendment was in the nature of a beneficial social legislation, it must be deemed to have a retrospective effect. Reliance was placed on “B.P. Khemka Pvt. Ltd vs Birendra Kumar Bhowmick & Anr,” 1987 SCR (2) 559 in this regard. 8. Heard learned counsel for the parties. 9. One of the cardinal principles of interpretation of statutes is that any amendment of a substantive provision is always prospective unless either expressly or by necessary intendment, it is made retrospective. 10. In “Hitendra Vishnu Thakur & Ors vs. State of Maharashtra & Ors,” (1994) 4 SCC 602 , the Apex Court held:- “(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.” 11. Maxwell on the interpretation of statues, 12th Edition states thus:- “Perhaps no rule of construction is more firmly established than thus - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.’ The rule has, in fact, two aspects, for it “involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.” 12. In “Zile Singh Vs State of Haryana & Ors,” (2004) 8 SCC 1 , it was held that while there was a presumption against retrospectivity, presumption against retrospective operation was not applicable to declaratory statues. What was stated by the Apex Court in Zile Singh’s case in paragraph 14 is reproduced hereunder:- “14. The presumption against retrospective operation is not applicable to declaratory statute…...In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain’ an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended............... An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended............... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.” 13. In a recent judgment, the Apex Court in “Prakash and others Vs Phulvati and others,” (2016) 2 SCC 36 reiterated the proposition by holding that an amendment of a substantive provision was always prospective unless either expressly or by necessary intendment, it is applied retrospectively. Reliance in this regard was also placed upon “Shyam Sunder & ors Vs Ram Kumar & another” (2001) 8 SCC 24 . 14. On a perusal of clause 13(4) post amendment, it can be said that the same intended the same to apply retrospectively. The argument that the amendment must be deemed to be retrospective in its operation being a piece of social legislation would also be contrary to the Apex Court Judgment in “Prakash and others Vs Phulavati and others,” where the Apex Court held:- “18. Contention of the respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20th December, 2004. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under the Explanation.” 15. Be that as it may, we hold that the amendment incorporated under Section 13 of the Jammu & Kashmir Civil Services Decentralization and Recruitment (Amendment) Act, 2013 is only prospective. 16. Reference is answered accordingly. SWP No. 280/2017 17. The factual context of the instant writ petition is similar to that in OWP No. 560/2011 and the decision rendered therein shall also govern in the instant writ petition as well.