Nagesh Singh &
ANR Vs. B.D. Virdi & Ors.  INSC 1215 (24 July 2008)
JURISDICTION CIVIL APPEAL NOS.1366-1367 OF 2004 NAGESH SINGH & ANR.
Appellant(s) Versus B.D. VIRDI & ORS. Respondent(s) ORDER We have heard
learned counsel for the parties.
These appeals by
special leave are directed against the order passed by the Division Bench of
the Delhi High Court dated 22nd July, 2003. The Division Bench of the Delhi
High Court in a writ petition filed by the respondent herein set aside the
order passed by the Administrative Tribunal dated 7th January, 1999. The order
reads as under :- "In the result these two O.As succeed and are allowed to
the extent that following the Supreme Court's Judgment in Shri Mohanty's case
(supra) the promotions made of those SC/ST candidates under Rule 13
(unamended), IES Rules, 1961 without considering the case of the applicants in
the two O.As before us, is held by us to be legally unsustainable. Furthermore,
the retrospective -2- operation of the amendment to Rule 13, IES Rules to the
extent that the same takes away the vested rights of the applicants and other
general category candidates is also unreasonable, arbitrary and as such
violative of Articles 14 and 16 of the Constitution and is, therefore, struck
In the light of the
above, respondents are directed to review the impugned promotions and consider
the cases of the applicants for promotions from the date the impugned
promotions were made, with all consequential benefits. While doing so the
respondents should make all efforts to protest the promotions of reserved
category candidates to the extent possible, but if it becomes absolutely
necessary to revert them from the higher posts to which they have been promoted
under the unamended or amended Rules, that may be done.
While doing so,
however, any financial benefits given to them while working in the higher posts
should not be withdrawn and should be protected as personal to them."
this order, the writ petition was filed by the respondents herein and the
Division Bench of the Delhi High Court set aside the aforesaid direction and
held that :
therefore, no other alternative but to set aside the judgments of the Tribunal
and remit the -3- matter back to it for consideration of the matter
So far as CWP No.223
of 2001 is concerned, the Division Bench held that it is not maintainable and
directed the petitioners to approach the Central Administrative Tribunal. CM
No.5066 of 2001 an application made by Mr. Gyan Prakash in this writ petition
is concerned, Court decline to implead applicant as party.
We may at outset
mention that we are not concerned with the facts relating to the CWP No.223 of
2001. We have been informed that the matter is pending before the Tribunal
pertaining to this subject. Therefore, we are not going into the facts
pertaining to CWP No.223/2001.
The present appeals
were filed by two persons namely Nagesh Singh and B.S.Bhandari who filed the
O.A. before the Tribunal praying the following reliefs :
i) "The Hon'ble
Tribunal may be pleased to declare the applicants having been promoted to Grade
III as per Rule 8(1)(b)(i) for his juniors have been promoted before them.
ii) That out of turn
promotion from Grade IV to Grade III of the IES to junior officers belonging to
SC/ST in supersession of claims of seniors belonging to the general category
be -4- struck down as violative of the statutory rules of the IES, 1971 and A
14, 16(1) and 335 of the Constitution of India, iii)This Hon'ble Tribunal may
be pleased to quash the impugned amendment dated 22.9.1989 (Annexure C)
amending Rule 13 as being void, iv) That the applicants be deemed to be
promoted to Grade III of the IES from the date their juniors have been
promoted, which were granted by the Tribunal and that have been set aside by
the Division Bench. Therefore, we are concerned with the grievance of these two
appellants before us vis-a-vis the respondents who are party before us. We are
not touching the rights of other parties in any manner."
Both these appellants
i.e Nagesh Singh and B.S. Bhandari joined Grade IV (Assistant Director) in the
Indian Economic Service (IES) on 1st September, 1982. The other respondents
joined the service after them.
Respondent No.1 joined
the service on 1.12.1982 and Respondent Nos.2 to 5 joined the service on 29th
August, 1983. Respondent No.1 was promoted on 25th May, 1988 as Grade III
(Deputy Director) by the Order dated 25th May, 1988 and respondent Nos. 2 to 5
were promoted as Grade III -5- (Deputy Director) on 7th July, 1988. Against
these accelerated promotions against reserved quota was challenged by
petitioner Nos. 1 and 2 by filing a representation but without any result.
Therefore, they were driven to file O.A.
before the Central
Administrative Tribunal under Section 19 of the Administrative Tribunal's Act,
1985. The main grievance of these petitioners before the Tribunal was that as
per Rule 13 as it stood in 1988 there was no reservation quota in promotion for
SC/ST and they have been wrongly promoted under the garb of so called
administrative instruction issued on 27th November, 1972. The validity of this
Notification dated 27th November, 1972 was also challenged. It may be relevant
to mention here that the Indian Economic Service Rules, 1961 were framed under
proviso to Rule 309 of the Constitution and they came into force when they were
published under the Gazette of India (Extra Ordinary) dated 1st November, 1961
and in that Rule 13 as it stood reads as under :-
13. Reservation for
Scheduled Castes, Scheduled Tribes etc. - Appointments to the Service made
otherwise than by promotion will be subject to orders regarding special
representation in the Services for Scheduled Castes and Scheduled Tribes issued
by the Ministry of Home Affairs from time to time."
-6- The grievance of
the petitioners was that Rule 13 did not contemplate any reservation against in
promotion quota. It clearly mandates that appointment of service made otherwise
than by promotion will be subject to orders regarding special representation in
service for SC/ST issued by the Ministry of Home Affairs from time to time.
Therefore, according to Rule 13, the reservation could only be made in service
otherwise than by way of promotion. It means that the only area in which the
reservation could be made is in the direct appointment. In our opinion Rule 13
clearly mandates that the reservation was only in recruitment and not in
promotion. However, this issue has been a subject matter of litigation before
this Court in number of cases but no useful purpose will be served by
highlighting all those cases because subsequently, Rule 13 was amended by
Notification dated 22nd September, 1989 and the amended rule reads as under :-
"13. Reservation for Scheduled Castes and Scheduled Tribes, etc. -
Appointment to the service shall be made subject to the orders relating to
reservation for Scheduled Castes and Scheduled Tribes issued by the Central
Government from time to time."
As a result of this
amendment the hurdle imposed in unamended Rule 13 was taken away and the area
was left -7- open for reservation in direct recruitment as well as in
promotions but this amended rule dated 22nd September, 1989 was made
retrospective effect with effect from 27th November, 1972. On 27th November,
1972 an order was issued by the Government for providing a reservation for
promotion quota also but it had no legal sanction at that time. Therefore, now
a legal sanction was given by amending Rule 13 and substituting the new rule
making it retrospective from 27th November, 1972 so as to protect all the
promotions which have been done from 27th November, 1972. This amended Rule 13
had come up for interpretation in identical service rules i.e. in the Indian
Statistical Service before this Court and the amended rule in the Indian
Statistical Service is pari materia with the present rule which reads as under
13. Reservation for
Scheduled Castes and Scheduled Tribes etc. - Appointment to the service made
otherwise than by promotion will be subject to orders regarding special
representation in the Service for Scheduled Castes and Scheduled Tribes issued
by the Government from time to time." This rule was also given
retrospective operation from 27th November, 1972.
This rule came up for
interpretation before this Court and Their Lordships after examining the
various -8- other decisions of this Court concluded that retrospectivity
cannot be given to the rule and it was observed that the legislature and the
competent authority under Article 309 of the Constitution of India have the
power to make laws with retrospective effect. This power, however, cannot be
used to justify the arbitrary, illegal or unconstitutional acts of the
Executive. When a person is deprived of an accrued right vested in him under a
statute or under the Constitution and he successfully challenges the same in
the court of law, the legislature cannot render the said right and the relief
obtained nugatory by enacting retrospective legislation.
It was also observed
that the retrospective operation of the amended rule 13 cannot be sustained.
It was observed in
para 14 and 15 in Union of India and Others vs. Tushal Ranjan Mohanty and
Others case reported in (1994) 5 SCC 450 which read as under :- 14."The
legislatures and the competent authority under Article 309 of the Constitution
of India have the power to make laws with retrospective effect. This power,
however, cannot be used to justify the arbitrary, illegal or unconstitutional
acts of the Executive. When a person is deprived of an accrued right vested in
him under a statute or under the Constitution and he successfully challenges
the same in the Court of law, the legislature cannot render the said right and
the relief obtain nugatory by enacting retrospective legislation. -9- 15.Respectfully
following the law laid down by this Court in the judgments referred to and
quoted above, we are of the view that the retrospective operation of the
amended Rule 13 cannot be sustained. We are satisfied that the retrospective
amendment of Rule 13 of the Rules takes away the vested rights of Mohanty and
other general category candidates senior to Respondents 2 to 9. We, therefore,
declare amended Rule 13 to the extent it has been made operative
retrospectively to be unreasonable, arbitrary and, as such, violative of
Articles 14 and 16 of the Constitution of India. We strike down the
retrospective operation of the rule. In the view we have taken on the point it
is not necessary to deal with the other contentions raised by Mohanty."
Therefore, ratio of
this case is equally applicable in this service also.
The net result of
above discussion is that at the time when the respondents were promoted there
was no rule and it was only administrative instruction which was sought to be
given a legal sanction by amending the Rule 13 from 1972 but that
retrospectivity has already been set aside in the case of Mohanty (supra).
Therefore, on the
basis of the reasoning given by the Hon'ble Sawant, J. in Union of India vs. V.
Mohanty's, we read down the Rule 13 that it cannot be given retrospectivity.
Accordingly, we set aside the order of the Division Bench of the Delhi High
Court and restore the order of the Tribunal passed in OA No.1206/93 and direct
-10- that the case of both these appellants before us shall be considered by
the respondents from the date when their juniors were promoted to the post of
Deputy Director, Grade III. However, we direct that whatever monetary benefits
which have been accrued to these respondents shall not be deprived to them.
We have been informed
that both these appellants have already been granted retrospective promotion
and all the benefits flowing there from.
The appeals are
allowed and the order of the Delhi High Court is set aside. All the
applications filed by Appellant No.3 - in person - are permitted to be
No order as to costs.