I N Saksena Vs. The State of Madhya
Pradesh  INSC 10 (23 January 1976)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SHINGAL, P.N.
CITATION: 1976 AIR 2250 1976 SCR (3) 237 1976
SCC (4) 750
CITATOR INFO :
R 1987 SC2310 (14)
Constitution of India-Articles 245 &
246-Schedule seven-List 11 entry 41-interpretation of legislative
entries-subsidiary or ancillary to subject covered by entries-Judicial function
and legislative function-Whether legislature can overrule a judicial
pronouncement by a bare declaration-Whether can remove basis of judicial
The appellant was a District & Sessions
Judge. By a Memorandum dated 28-2-1963, the State Government raised the age of
compulsory retirement for Government servants to 58 years. The said Memorandum,
however, empowered the Government to retire a Government servant after he
attains the age of 55 years. Thereafter, rules under the proviso to Article 309
of the Constitution were framed whereby the age of superannuation was raised to
58 years. However the clause empowering the Government to retire a Government
servant after the age of SS years, was not incorporated in the said rules. The
appellant was retired from service after he completed SS years and before he
completed 58 years. The challenge to the said order of compulsory retirement
succeeded in this Court. This court held on 23-1-1967 as under:
"The appellant will be deemed to have
continued in the service of the Government in spite of that order.
As. however. the appellant attained the age
of 58 years, in August, 1966, it is not possible now to direct that he should
be put in service. But he will be entitled to such benefits as may accrue now
to him by virtue of the success of the writ petition. The appellant will get
his costs from the State - throughout." Thereafter. an ordinance was
promulgated which later on became an Act of the Madhya Pradesh Legislature. The
said Act validated the retirement of certain Government servants including the
appellant, despite the judgment of this Court.
The act was made effective from 1st March
1963 and It empowered the Government to retire a Government servant on his
attaining the age of 55 years.
The appellant again filed a Writ Petition in
the High Court which was dismissed.
In an appeal the appellant contended before
1. The Act has been passed to overrule a
decision of this Court which the legislature has no power to do.
2. The matter having once been decided by the
Supreme Court was barred by the principle of res judicata.
3. The Act gives naked power to the
authorities to retire any employee after he attains the age of 55 years and
provides no guidelines for the exercise OF the power.
4. A right of property being a judgment debt
protected by Article 19(1)(f) of the Constitution, the impugned Act could not
have expropriated without providing for any compensation. It is ultra vires
Article 31(2) of the Constitution.
5. The impugned, Act is ultra vires the
Constitution since it seeks to validate the retirement of the appellant and
others like him by changing their service conditions with retrospective effect.
In doing so, the Legislature has over-stepped the limits of legislative power.
6. Even if the impugned Act is valid, on a
proper construction it does not vacate the decree of this Court.
238 Dismissing the appeal by certificate
under Article 132(1) and 133(1)(a) to
HELD: 1. The decree of this Court is not a
money decree raising a judgment debt. It is a declaratory decree declaring that
the order compulsorily retiring the appellant was invalid. The further
declaration that he would be entitled to such benefits as might accrue to him
by virtue of the success of the Writ Petition, was only incidental or
anciliary, to the main relief and will fall or stand with the same. [242 G-HI
2. The distinction between a Legislative act
and a Judicial act is well known though in some specific instances the line
which separates one category from the other may not be easily discernible.
Adjudication of the rights of the parties according to law enacted by the
Legislature is a judicial function. It is for the Legislature to lay down the
law, prescribing norms of conduct which will govern parties and transactions
and to require the court to give effect to that law. The Legislature cannot by
a bare declaration, without more, directly overrule, reverse or override a
judicial decision. It may at any time in exercise of the plenary powers
conferred on it by Articles 245 and 246 of the Constitution render a judicial
decision ineffective by enacting a valid law on a topic within its legislative
field, fundamentally altering or changing with retrospective curative or
neutralising effect the conditions on which such decision is based. Judgments
in Indira Nehru Gandhi v. Raj Narain,  2 S.C.R, 347 and Hari Singh v.
Military Estate Officer 1 S.C.R. 516 followed. [243 A-D]
3. In enacting the impugned Act the State
Legislature derives its competence not only from Article 309 but also from
Entry 41 of List II of the Seventh Schedule. It is well settled that the
entries in these legislative lists are to be construed in their widest possible
amplitude and each general word used in such entries must be held to comprehend
anciliary or subsidiary matters. The Legislature has legislative competence not
only to change the service conditions of Civil Servants with retrospective
effect but also to validate with retroactive force invalid executive orders
retiring the servants because such validating legislation must be regarded as
subsidiary or anciliary to the power of legislation on the subject covered by
4. The impugned Act by introducing a legal
fiction on giving the said memorandum statutory status with effect from its
inception, effectively cures the defects from which this Memorandum and the
orders of retirement made there under were suffering. Thus the said legislation
removes or cures the defect which this Court found in the Memorandum which was
the basis of the impugned orders of retirement. [246 A- B]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 131 of 1971 and 350 of 1971.
(From the Judgments and orders dated 2-5-1970
of the Madhya Pradesh High Court in Misc. Petitions Nos. 504 and 92 of 1967
G. L. Sanghi, Bishamber Lal and M. Iyngar for
the Appe llant (In CA 131/71).
M. N. Phadke, S. S. Khanduja for the
Appellant (In CA 350/71).
I. N. Shroff for the Respondent (In both
The Judgment of the Court was delivered by
SARKARIA, J. This appeal on certificate is directed against a judgment of the
Madhya Pradesh High Court dismissing the Appellant's writ petition under Art.
226 of the Constitution.
239 The appellant joined the service of the
State Government as a subordinate Judge in the year 1936. On promotion, he was
confirmed as District and Sessions Judge with effect from December 2, 1957. The
appellant attained the age of 55 years on August 22, 1965 which was the age of
superannuation according to Fundamental Rule 56 (Ch IX) governing the Civil
Services of the State. But prior to that on February 28, 1963, by a memorandum
No. 433-259-1 (iii) /63, the State Government raised the age of compulsory
retirement for government servants to 58 years subject to certain exceptions.
The material part of the memorandum dated February 28, 1963, read as follows:
"5. Notwithstanding anything contained
in the foregoing paragraphs the appointing authority may require a Government
servant to retire after he attains the age of SS years on 3 months notice
without assigning any reasons A Government servant may also after attaining the
age of 55 years voluntarily retire after giving 3 months notice to the
6. These orders will have effect from the 1st
March 1963 .
7. Necessary amendments to the State Civil Service
Regulations will be issued in due course." Thereafter, by Government
Notification dated November 29, 1963, F. R. 56 was amended on December 6, 1963
in exercise of the power under the Proviso to Article 309 of the Constitution,
raising the age of compulsory retirement of the State Civil Servants to 58
years with effect from March 1, 1963 but the clause in the aforesaid
Memorandum, empowering the Government to retire servants above the age of 55
years by giving them three months' notice was not incorporated in the Rule.
Tn view of this memorandum, the appellant was
allowed to continue in office after he had attained the age of 55 years.
On September 11, 1963, the respondent passed
an order retiring the appellant from service with effect from December 31,
1963. To impugn this order, the appellant filed a Writ Petition in the High
Court under Art. 226 of the Constitution on the ground that F. R. 56 as it
stood after the amendment of November 29, 1963, (published on 6-12-1963) did
not contain any provision authorising the respondent to retire the appellant
after the attainment of 55 years of age and that his retirement was contrary to
Art. 311(2) and Art.
14 of the Constitution. The High Court
dismissed the writ petition by its judgment dated April 30, 1964.
The appellant came up in appeal to this
Court. During the pendency of that appeal Saksena attained the age of 58 years.
By its judgment dated January 23, 1967, this Court quashed the impugned order
of retirement holding that:
"The appellant will be deemed to have
continued in the service of the Government in spite of that order.
As, however, the appellant attained the age
of 58 years, in August, 240 1966 it is not possible now to direct that he
should be put back in service. But he will be entitled to such benefits as may
accrue now to him by virtue of the success of the writ petition. The appellant
will get his costs from the State throughout." Before the decision of that
appeal (Civil Appeal No.
670 of 1965) however, the Governor had
promulgated the Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 under
Art. 309 of the Constitution. These Rules were published in the Government
Gazette of July 17, 1965. By a deeming clause, these Rules were made effective
from March 1, 1963. The age of retirement was thereby raised to 58 years and
under r. 6 thereof, the appointing authority was empowered to retire a
Government Servant on his attaining the age of 55 years on 3 months' notice
without assigning any reason. By r. 8, the aforesaid memorandum, dated February
28, 1963, was cancelled, and it was provided that notwithstanding the
cancellation of that memorandum anything done or any action taken in pursuance
of the directions contained in that memorandum shall be and shall always be
deemed to have been done or to have been taken under the relevant provisions of
At the hearing of the earlier appeal, these
Rules were not brought to the notice of this Court.
On February 10, 1967, after the judgment by
this Court, the State promulgated an ordinance which was replaced on April 20,
1963 by the Madhya Pradesh Shaskiya Sevak Anivarya Sevanivitrika Vidhi-
manyatakaran Vidyayaktakaran Vidyeyak Adhiniyam 1967 (Act 5 of 1967) validating
the retirement of certain Government servants, including that of the appellant,
despite the judgment of this Court.
By virtue of this Act, the State is vested
with a right not to pay the dues of the appellant from the date of his
retirement (December 3, 1963 onwards.
Sections 2 and 5 of the Act, which are
material for our purpose, read as follows:
"2. (1) The Madhya Pradesh (Age of
Compulsory Retirement Rules, 1965 replacing the provisions of the , Government
of Madhya Pradesh General Administration Department Memorandum No.
1433-258-l(iii)/63, dated the 28th February 1963 (hereinafter referred to as
the Memorandum) shall be deemed to have come into force with effect from the
1st March 1963.
(2) Anything done or any action taken in
pursuance of the directions contained in the memorandum shall be and shall
always be deemed to have been done or taken under corresponding provisions of
the aforesaid rules as if the aforesaid rules were in force on the date on
which such thing was done or action was taken and shall now be called into 241
question in any court on the ground that the provisions of the A memorandum
were not issued in the form of rules made by the Governor of Madhya Pradesh
309 of the Constitution and could not
therefore regulate the conditions of service of Government servants serving in
connection with the affairs of the State." "5. Notwithstanding any
judgment, decree or order of any Court, all Government servants serving in
connection with the affairs of the State who were compulsorily retired or
purported to have been compulsorily retired in accordance with the memorandum
as replaced by the Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965
referred to in Section 2 during the period beginning with 1st March, 1965 and
ending on 15th July, 1965 shall be and shall always be deemed to have been
validly retired in accordance with the condition of service applicable to them
at the relevant time as if the provisions of Sections 2 and 3 had been in force
at all material time when such retirement was ordered, as accordingly:
(a) all notices served on such Government
servants' after their completion of age of 55 years shall be deemed to be and
to have been issued in accordance with the rules governing their conditions of
(b) no suit or other proceedings shall be
maintained or continued in any Court for any amount whatsoever as a payment
towards salary for the period beginning with the date on which a Government
servant had been compulsorily retired and ending on the date of his attainment
of age of 58 years.
c) no court shall enforce any decree or order
directing the payment of any such amount referred to in clause (b) above."
In substance, and effect, this Act has made provisions of the Compulsorily
Retirement Rules, 1965 applicable from March 1, 1963.
On November 10, 1967, the appellant again
moved the High Court by a writ petition out of which the present appeal has
arisen, challenging the validity of this Act, particularly of sections 2 and S
Four contentions were raised by him before
the High Court: (1) that the Act has been passed to over-rule the decision of
the Supreme Court which the legislature has no power to do, (2) that the
statement of objects and Reasons attached to the Bill when it was introduced,
indicates that its main object was to avoid financial burden which would fall
on the State on account of its having to pay arrears of pension etc. to a large
number of officers who had been retired under the said memorandum which was
treated to be a rule and which the Supreme Court held was not an effective rule
but merely an executive instruction: (3) that the matter having once been
decided by the Supreme Court, was barred by the principle of res judicata and
(4) 242 that the Rules give naked power to the authorities to retire any
employee after he has attained the age of 55 years by giving him three months'
notice, and provide no guidelines for the exercise of this power.
The High Court negative these contentions,
dismissed the writ ,, petition but granted a certificate under Art.
132 (1) and 133(1)(a) to (c) of the
Hence this appeal.
The contentions advanced before the High
Court have been repeated before us with amplification and addition.
It is argued on behalf of the appellant: (i)
that a right of property, being a judgment-debt, protected by Article 19(1)(f)
of the Constitution, had been created by this Court's decree dated January 30,
1967 in favour of the appellant and against the State. Since the impugned Act
in effect, seeks to expropriate the appellant of that right without providing
for any compensation, it is ultra vires Article 31(2) of the Constitution, (ii)
The impugned Act is ultra vires the Constitution inasmuch as it seeks to
validate the retirement of the appellant, and others like him, by changing
their service conditions with retrospective effect. In so doing, the State
legislature has overstepped the limits of legislative powers conferred on it by
Article 309 of the Constitution. Reliance has been placed on the decision of
this Court in The State of Mysore v. Padamanabhacharya etc.(1) (iii) The impugned
Act encroaches upon the judicial field inasmuch as it over-rules and makes
unenforceable the decision, dated January 30, 1967 of this Court in Civil
Appeal No. 670 of 1963 and in so doing, it offends Article 141, 142 and 144 of
the Constitution, (iv) Even if the impugned Act is valid, cls. (b) and (c) of
s. 5 of the Act, on a proper construction, do not vacate the decree of this
Court, requiring the respondent to pay to the appellant the pecuniary benefits
resulting from the success of his earlier appeal (C. A. 670/65) in this Court.
Clause (b) of s. S merely bars the maintenance or continuation of any
proceeding for any amount as a payment towards salary.
The appellant is not seeking to maintain or
continue any execution proceeding in court, for the recovery of any amount
towards salary, the decree being a declaratory one.
None of these contentions appears to be
A perusal of this Court's decree, dated
January 30, 1967, (extracted above) would show that it is not a money decree,
raising a judgment-debt. It is a declaratory decree, declaring that the
respondents' order, dated September 11, 1963, compulsorily retiring the
appellant r was invalid, and consequently the appellant would be deemed to have
continued in service till he attained the age of 58 years. The further
declaration that "he will be entitled to such benefits as may accrue to
him by virtue of the success of the writ petition" was only incidental or
ancillary to the main relief and will fall or stand with the same. This being
the position, the decree did not create an indefeasible right -.
 1 S.C.R. 494.
243 of properly in favor of the appellant. We
therefore do not find any A substance in the argument that the impugned Act
seeks to acquire without payment of compensation property vesting in the
appellant and is consequently unconstitutional.
The distinction between a
"legislative" act and a "judicial" act is well known,
though in some specific instances the line which separates one category from
the other may not be easily discernible. Adjudication of the rights of the
parties according to law enacted by the legislature is a judicial function. In
the performance of this function, the court interprets and gives effect to the
intent and mandate of the legislature as embodied in the statute. On the other
hand, it is for the legislature to lay down the law, prescribing norms of
conduct which will govern parties and transactions and to require the court to
give effect to that law.
While, in view of this distinction between
legislative and judicial functions, the legislature cannot by a bare
declaration, without more, directly over-rule, reverse or over-ride a judicial
decision, it may, at any time in exercise of the plenary powers conferred on it
by Article 245 and 246 of the Constitution render a judicial decision
ineffective by enacting a valid law on a topic within its legislative field
fundamentally altering or changing with retrospective, curative or neutralising
effect the conditions on which such decision is based. As pointed out by Ray
C.J. in Indira Nehru Gandhi v. Raj Narain,(1) the rendering ineffective of
judgments or orders of competent courts and tribunals by changing their basis
by legislative enactment is a well-known pattern of all validating Acts.
Such validating legislation which removes the
causes for ineffectiveness or invalidity of actions or proceedings is not an
encroachment on judicial power.
In Hari Singh v. Military Estate officer,(2)
a Bench of seven learned Judges of this Court laid down that the validity of a
validating law is to be judged by two tests.
Firstly, whether the legislature possesses
competence over the subject matter, and, secondly, whether by validation the
legislature has removed the defect which the courts had found in the previous
law. To these we may add a third .
Whether it is consistent with the provisions
of Part III of the Constitution.
We have noticed already, that the impugned
provisions do not offened Articles 19 and 31 or anything else in Part III of
We may now see whether the provisions in
question satisfy the first two tests. G Mr. Sanghi's argument is that by virtue
of the power conferred by Article 309, the State Legislature is not competent
to pass a law validating retrospectively an invalid order of retirement of a
State civil servant, made by the State Government, or render ineffective a
decree of this Court declaring invalid such an order. The point sought to be
made out is that the legislative power conferred on the State legislature by
Article 309, is confined to regulating the recruitment and conditions of
service of me persons appointed to public services of the (1) [1976 2 S.C.R.
347. (2)  1 S.C.R. 5-16.
244 State, and that the impugned provisions
not being such regulatory provisions, are ultra vires Article 309.
In Padmanabhacharya's case (supra), which is
the sheet anchor of this contention, the Court was considering the scope of
Article 309 in the context of Rule 294(a) Note 4, of the Mysore Service
Regulations. There, the respondent was a teacher in a Government School. He was
ordered to be retired from service with effect from February 3, 1958 on
attaining the age of 55 years. He challenged the validity of the order by a
writ petition under Article 226 in the High Court and contended that rule 294
(a) having been amended in April 1955, the normal age of superannuation was
fixed at 58 years, instead of 55 years. On behalf of the State, it was
canvassed that a notification of the Governor under Article 309 of the Constitution,
issued on March 25, 1959 had validated the action taken in retiring the
respondent, and others upon their attaining the age of 55 years.
Wanchoo J. (as he then was), speaking for
this Court held that such a rule cannot be made under the proviso to Article
309 of the Constitution, but was cautious enough to add: ' `We are expressing
no opinion as to the power of the legislature to make a retrospective provision
under Article 309 of the Constitution wherein the appropriate legislature has
been given the power to regulate the recruitment and conditions of service of
persons appointed to public service and posts in connection with the affairs of
the Union or of any State by passing Acts under Art. 309 of the Constitution
read with item 70 of List I of the Seventh Schedule or item 41 of List II of
the Seventh Schedule. The present rule has been made by the Governor under the
proviso to Art.
309. That proviso lays down that it shall be
competent for the Governor or such person as he may direct in the - case of
services and posts in connection with the affairs of the State to make rules
regulating the recruitment, and the conditions of service of persons appointed,
to such services and posts until provision in that behalf is made by or under
an Act by the appropriate legislature. Under the proviso the Governor has the
power to make rules regulating the recruitment and conditions of service of
persons appointed to such services and posts in connection with the affairs of
the State. The question is whether the notification of March 25, 1959 can be
said to be such a rule. We are of opinion that this notification cannot be said
to be a rule regulating the recruitment and conditions of service of persons
appointed to the services and posts in connection with the affairs of the
State." From what has been quoted above, it is clear that this Court
advisedly did not express any opinion about the competency of the appropriate
legislature to enact validating provisions of this type concerning the public
servants serving in connection with the affairs of the State or the Central
Government, as the case may be.
245 It is noteworthy that in enacting the
impugned Act, the State A legislature derives its competence not only from
Article 309, but also from Entry 41 of List II of the Seventh Schedule. Indeed,
within its allotted sphere, that is, with respect to any of the matters
enumerated in List II of the Seventh Schedule the State legislature has, by
virtue of Art. 246(3), exclusive, plenary powers of legislation.
Entry 41, List II, reads as under: B
"41. State public services; State Public Service Commission." It is
well settled that the entries in these legislative lists in Schedule VII are to
be construed in their widest possible amplitude, and each general word used in
such Entries must be held to comprehend ancillary or subsidiary matters. Thus
considered, it is clear that the scope of Entry 41 is wider than the matter of
regulating the recruitment and conditions of service of public servants under
Article 309. The area of legislative competence defined by Entry 41 is far more
comprehensive than that covered by the proviso to Article 309. By virtue of
Articles 246, 309 and read with Entry 41, List II, therefore, the State
legislature had legislative competence not only to change the service
conditions of State Civil Servants with retrospective effect but also to
validate with retrospective force invalid executive orders retiring the
servants, because such validating legislation must be regarded as subsidiary or
ancillary to the power of legislation on the subject covered by Entry 41.
Thus the impugned provisions satisfy the
This takes us to the second test, whether the
impugned legislation removes or cures the defect which this Court had found in
the Memorandum which was the basis of the impugned orders of retirement. For
reasons that follow, the answer to this question also must be in the
The basis of this Court's decision dated
January 30, 1967 in Civil Appeal 670 of 1965 was that the Government Memorandum
dated February 28, 1963, in pursuance of which the impugned order on retirement
of I. N. Saksena had been passed on September 11, 1963, had not attained the
status of a statutory rule framed under the proviso to Article 309 of the
Constitution, but was merely an administrative instruction. This provision in
the Memorandum empowering the Government to retire a servant on his attaining
the age of 55 years, after three months notice, was not incorporated in the
statutory rules. On the other hand the amendment made with effect from March
1963 in Fundamental Rule 56, in exercise of its powers under Article 309 by the
Government under notification dated December 6, 1963, had raised the age of
retirement for State Government servants from 55 to 58 years. I. N. Saksena had
therefore, by virtue of this amended statutory rule a right to remain in
service up to the age of 58 years. This right could not be taken away by mere
executive instructions embodied in the Memorandum. H Madhya Pradesh Act 5 of
1963 gives the said Memorandum the statutory status with effect from its very
inception. By introducing 246 a legal fiction the Act effectively cures the
defect from which this Memorandum and the orders of retirement made there under
Thus the second test was also satisfied. The
conclusion is therefore inescapable that the impugned provisions were valid.
Hence, the order, dated September 11, 1963, of Saksena's compulsory retirement
became valid as the basis of this Court's judgment dated January 30, 1967 was
There is no force in the fourth contention of
Mr. Sanghi. Section 5, particularly Clauses (b) and (c), effectively vacate the
previous decree of this Court in favour of Saksena. For removing doubts, these
clauses declare that this Court's decree will not be enforceable by initiating
proceedings in any court thereon, in future.
In the light of the above discussion, it is
abundantly clear that in enacting the impugned provisions, the legislature has
not exceeded the limits of its legislative powers nor encroached on the
judicial field. We will close the discussion by noticing only one decision out
of the many that had been cited at the bar.
In Piare Dusada and Ors. v. The King
Emperor,(1) the Governor General by ordinance repealed the Special Criminal
Courts ordinance II of 1942. There was a provision in the repealing-ordinance
for confirmation and continuance of sentences of Special Courts and retrial of
pending case. The appellant therein had been convicted and sentenced by Special
Criminal Court which was held to have no jurisdiction to try the case by an
order of a court. Section 3(1) of the Special Criminal Courts (Repeal)
ordinance, 1943 conferred validity and full effectiveness on sentences passed
by Special Criminal Courts by conferring jurisdiction on them with
retrospective effect. The Federal Court held that by promulgating the
validating and repealing ordinance of 1943, the legislative authority had not
attempted to do indirectly what it could not do directly or to exercise judicial
power in the guise of legislation. It was further held that the ordinance was
not invalid on the ground that the legislative authority had validated by
retrospective legislation proceedings held in courts which were void for want
of jurisdiction as there was nothing in the Indian Constitution which precluded
the legislature from doing so.
The ratio of the above decision applies with
greater force to the present case.
For all the foregoing reasons, we negative
all the contentions canvassed by Mr. Sanghi and dismiss this appeal leaving the
parties to bear their own costs.
Civil Appeal No. 350 of 1971 SARKARIA, J. For
the reasons recorded in Civil Appeal No. 131 R of 1971 entitled I. N. Saksena
v. State of Madhya Pradesh, this appeal fails and is dismissed without any
order as to costs.