Ex. Capt. K.C. Arora & ANR Vs.
State of Haryana & Ors [1984] INSC 93 (26 April 1984)
MISRA, R.B. (J) MISRA, R.B. (J) REDDY, O.
CHINNAPPA (J) VENKATARAMIAH, E.S. (J)
CITATION: 1987 AIR 1858 1984 SCR (3) 623 1984
SCC (3) 281 1984 SCALE (1)651
CITATOR INFO :
RF 1991 SC1047 (8)
ACT:
The Punjab Government National Emergency
(Concessions) Rules 1965 Rules 2, and 3(ii), as amended by the Haryana
Government Gazette Notification No. GSR 77/Const/Art 309/Amend/(1)/76 dated
August 9, 1976 amending the definition of the expression "Military
Service" in Rule 2, Constitutional Validity-The vested accrued right of a
Government Servant cannot be taken away by making amendments of the rules with
retrospective effect.
HEADNOTE:
In 1962 an emergency was imposed by the Government
of India on account of the external aggression by the Chinese forces in the
Indian Territory. The Government was in great need of youngmen to join the
military service at the risk of their lives to serve the nation to cope with
the emergency needs of the Government of India. The Government of India as well
as the State Governments decided to give certain benefits to encourage the
young energetic youths to join military service at the critical juncture of
national emergency and therefore issued different circulars and advertisements
on radio and the press promising certain benefits to young men who join the
military service at the critical juncture. Later on, on the instructions of the
Central Government concessions as were promised through circulars and by other
means were incorporated in the rules framed by the joint Punjab Government
under Article 309 of the Constitution, titled as "The Punjab National
Emergency (Concessions) Rules. 1965." Keeping in view the needs of the
country and assurances and concessions contained in conditions of service in
executive instructions, the petitioners and appellants and many others like
them joined the army during- the emergency as commissioned officers in 1963-64
and had rendered more than five years of service reckoned from 26.10.1982 i. e.
date of proclamation of emergency and after their release from the Army they
were entitled to benefits vested them under the conditions of service.
The petitioners and appellants and a number
of others similar to the petitioners joined the Haryana Government as Assistant
Engineers. Consequent upon their appointments against the vacancies reserved
for ex-army Officers, they became entitled to get their seniority fixed giving
them the benefit of their military service, but the gradation list prepared
however did not include their military service for the purposes of fixation of
their seniority. The State of Haryana just to deprive the petitioners and
others similarly situated, of military service, amended the rules with retrospective-effect
from November 1st 1966 vide Haryana Government Gazette Notification
No. GSR 77/Const/Art 309/Amend/(1)/76 dated March 22,1976 introducing a proviso
to rule 4 (ii) of the 1965 Rules and vide Haryana Government Gazette
Notification No. GSR 182/Const/Art 309/Amend/(2)/ 624 76 dated August 9,1976
amending Rule 2 of the 1965 Rules.
These notifications restricted the benefits
of military service up to January 10, 1968 the date on which the first
emergency was lifted with the result that the vested rights which accrued to
the petitioners in 1969, 1970 and 1971 have been taken away. The two writ
petitions Nos. WP 2065/1976 and WP 2065/1976 and WP 1088/1980 challenging the
same were dismissed by the Punjab and Haryana High Court and hence their
appeals Nos. CA 3095 and 3096/1980 by way of special leave. Some others
directly filed petitions in the Supreme Court under Art 32 and they are WPs
6437 and 6436 of 1980.
Allowing the appeals and the Petitions, the
Court
HELD : 1:1. The Parliament as also the State
Legislature have plenary powers to legislate within the field of legislation
committed to them and subject to certain constitutional restrictions they can
legislate prospectively as well as retrospectively. [632C-D] 1:2. It is,
however, a cardinal principle of construction that every statute is prima facie
prospective unless it is expressly or by necessary implication made to have
retrospective effect. But the rule in general is applicable where the object of
the statute is to affect the vested rights or to impose new burden or to impair
existing obligations. Unless there are words in the statute sufficient to show
the intention of the legislature to effect existing rights, it is deemed to be
prospective only.
Provisions which touch a right in existence at
the passing of the statute are not to be applied retrospectively in the absence
of express enactment or necessary intendment. The Governor can also exercise
the same powers under Art. 309 of the Constitution and there is not the
slightest doubt that the impugned amendment brought in has been made
retrospective. The impugned amendments in the instant case by necessary
implication have undoubtedly retrospective effect. [632D-F] Harbhajan Singh v.
State of Punjab [1977] 2 S.L.R. 180 ; Ex. Major. N.C Singhal v. Director
General Armed Forces Medical Service : A.I.R. 1972 S.C. 628; State of Mysore v.
M.N. Krishna Murty & Ors., [1973] 2 S.C.R. 575; Raj Kumar v. Union of India
& Ors., [1975] 3 S.C.R. 963 ; Wing Commander J. Kumar v. Union of India
& Ors. [1982] 2 S.C.C. 116 ; B.S. Vadera v. Union of India & Ors.,
[1968] 3 S.C.R. 575 ;
discussed.
1:3. The Haryana Government cannot take away
the accrued rights of the petitioners and the appellants by making amendment of
the rules with retrospective effect. The impugned rule 4 (ii) of the Punjab
Government National Emergency (Concessions) Rule, 1965, as amended by the
Haryana Government Gazette Notification No. GSR. 77/Const /Art.
309/Amend/(1)/76 dated 22nd March, 1976 and the Notification No. G.S.R.
182/Const/Art/309/Amend. (2)/76 dated 9th August, 1976 amending the definition
of the expression `military service' in rule 2, are ultra vires the
Constitution, in so far as they effect prejudicially persons who had acquired
rights. [639B-C-D-E] State of Gujarat v. Raman Lal Keshav Lal Soni, [1983] 2
S.C.C. 33 ; followed.
625
ORIGINAL JURISDICTION : Writ Petitions Nos.
6436-37 of 1980 [Under Article 32 of the Constitution of India] AND Civil
Appeals Nos. 3095-96 of 1980 Appeal by Special leave from the Judgment and Order
dated the 10th October, 1980 of the Punjab and Haryana High Court in C. Writ
Petition No. 2065 of 1976 & 1088 of 1980) P.C. Bhartari for the Appellant.
Dr. Y.S. Chitale and M.G. Ramachandran for
Respondents in Writ Petitions.
V.C. Mahajan, I.S. Goel and R.N. Poddar for
Respondent.
The Judgment of the Court was delivered by
MISRA, J. The present writ petitions under Article 32 of the Constitution and
the civil appeals by special leave arising out of petitions under Article 226
of the Constitution raise common questions of law and are, therefore, being
disposed of by a common judgment.
The pattern of facts in the present group of
cases is the same and therefore, it is not necessary to give the facts of each
case separately. In order to bring out the points for consideration in these
cases we would like to give the facts of writ petition No. 6436 of 1980.
In 1952 an emergency was imposed by the
Government of India on account of the external aggression by the Chinese forces
on the Indian territory. The Government was in great need of youngmen to join
the military service at the risk of their lives to serve the nation to cope
with the emergency needs of the Government of India. The Government of India as
well as the State Governments decided to give certain benefits to encourage the
young energetic youths to join military service at the critical juncture of
national emergency. The Government in the States and the Centre issued
different circulars and advertisements on radio and the press promising certain
benefits to be given to yougmen who join the military service at the critical
juncture.
626 In July 1963 a circular was issued by the
Financial Commissioner, Punjab with regard to the concessions to civilian
employees and others who joined military service, which will account for
increments, seniority and pension in civil employment. Later on, on the
instructions of the Central Government concessions as were promises through
circulars and by other means were incorporated in the rules framed by the joint
Punjab Government under Article 309 of the Constitution.
Keeping in view the needs of the country and
assurances contained in conditions of service in executive instructions the
petitioners and the appellants and many others like them joined the army during
the emergency as Commissioned Officers in 1963-64. They were commissioned
officers in the Indian Army for more than five years and after their release
from the Army they were entitled to benefits vested in them under the
conditions of service.
The Haryana Government in the year 1969
advertised 16 posts of temporary Assistant Engineers in P.W.D., B & R
Branch. At the time of the advertisement on 28th of January, 1969 8 posts out
of the total of 16 were reserved for ex- emergency commissioned officers and servicemen.
Although the advertisement was for 16 posts but at the time of selection 55
appointment were made, out of which 20 posts were reserved for ex-emergency
commissioned officers. Out of this quota of 20 posts only 7 appointments from
amongst the ex- emergency commissioned officers were made. Requisite
qualifications for ex-emergency commissioned officers and servicemen were as
follows :
"1. Diploma in civil engineering from a
recognised institution.
2. Five years continuous service with
distinguished record.
3. Adequate knowledge of Hindi.
Note : For purpose of counting five years'
continuous service, the period commencing from 26.10.1962 will only be taken
into consideration." Again in November, 1970 38 posts of temporary
Assistant Engineers were advertised out of 18 posts were reserved for
ex-emergency commissioned officers. At the time of making appointments,
however, 99 persons were appointed and out of these 99 posts 627 90 posts were
declared reserved for ex-emergency commissioned officers. But again only 7
ex-emergency commissioned officers were appointed in response to the
advertisement.
Petitioner No. 1 on selection had joined
service on 17th of August, 1971. The second advertisement also contained the
same qualifications as were in the first advertisement. Thus the two
petitioners in writ petition Nos. 6436-37 served the Indian Army for more than
five years and thereafter those petitioners were appointed in the service of
the Haryana Government as temporary Assistant Engineers against the posts
reserved for the ex-emergency commissioned officers. There were a number of
other persons similar to the petitioners who were also appointed against the
vacancies reserved for ex-Army officers.
The Government of Punjab prior to the
formation of Haryana made statutory rules under Article 309 of the Constitution
which are called `The Punjab National Emergency (Concession) Rules, 1965. The
relevant rules 2, 3, 4, and 5 of these rules are as under :
"2. Definition :- For the purpose of
these rules, the expression `military service' means enrolled or commissioned
service in any of the three wings of the Indian Armed Forces (including service
as a Warrant Officer) rendered by a person during the period of operation of
the proclamation of emergency made by the President under Article 352 of the
Constitution of India on the 26th October, 1962 or such other service as may
hereafter be declared as military service for the purposes of these rules. Any
period of military training followed by military service shall also be reckoned
as Military Service.
3. Maximum age-limit and minimum
qualification :
i) The maximum age-limit prescribed for
appointment to any service or post shall be relaxed in favour of a person who
has rendered military service to the extent of his military service, provided
he produces a certificate from the competent authority that he had rendered
continuous military service for a period of not less than six months and was
discharged because of demobilisation or reduction not more than three years
prior to the date of his registration at an employment 628 exchange or the date
of his application for employment under the Government.
ii) A person who has become disabled while in
military service shall also be entitled to exclude from his age the period from
the date he was disabled up to the date of his application for appointment to
any service or post under the Government, or till the end of the present
emergency, whichever is shorter.
iii) In case a person who has rendered
military service does not possess the minimum qualification prescribed for any
service or post, he shall be deemed to possess these qualifications if the
appointing authority certifies that such a person has acquired by experience or
otherwise qualification equivalent to those prescribed for that service or
post.
4. Increments, seniority and pension : period
of military service shall count for increments, seniority and pension as under
:- (i) Increments : The period spent by a person on military service, after
attaining the minimum age prescribed for appointment to any service or post, to
which he is appointed, shall count for increments.
Where no such minimum age is prescribed the
minimum age shall be as laid down in rules 3.9, 3.10 and 3.11 of the Punjab
Civil Services Rules Volume II. This concession shall, however, be admissible
only on first appointment.
(ii) Seniority : The period of military
service mentioned in clause (1) shall be taken into consideration for the
purpose of determining the seniority of a person who has rendered military
service.
(iii) Pension : The period of military
service mentioned in clause (i) shall count towards pension only in the case of
appointments to permanent services or posts under the Government subject to the
following conditions :
(1) The person concerned should have earned a
pension under military rules in respect of the military service in question.
629 (2) Any bonus or gratuity paid in respect
of military service by the defence authorities shall have to be refunded to the
State Government.
(3) The period, if any, between the date of
discharge from military service and the date of appointment to any service or
post under the Government shall count for pension, provided such period does
not exceed one year. Any period exceeding one year but not exceeding three
years may also be allowed to count for pension in exceptional cases under the
orders of the Government.
5. Seniority, promotion, increment, pension
and leave of Government employees:- The period spent on military service by a Government
employee shall count for seniority promotion, increment and pension in the
service or post held by him immediately before his joining military service. A
permanent Government employee who renders military service, shall earn leave
during such service according to the leave rules applicable to him immediately
before his joining military service. A temporary Government employees shall
during military service, be governed by the military rules in all respects. The
employee concerned shall be entitled to proforma promotion in his parent
department under the 'next below' rule and also to seniority in higher posts to
which he would otherwise have been entitled if he had not joined military
service.
According to these rules and the previous
assurances given by the Government the petitioners were to be given seniority
by counting period of military service for the purpose of determining
seniority, increments and pension etc. Immediately on appointment of the
petitioners as temporary Assistant Engineers they became entitled to get their
seniority fixed giving them the benefit of their military service but the
gradation list prepared, however, did not include the military service of the
petitioners for the purpose of fixation of their seniority. The State of Haryana
just to deprive the petitioners, and others similarly situated, of military
service amended the rules with retrospective effect from 1st November, 1966
vide Haryana Government Gazette Notification No. G.S.R. 77/Const/Art.
309/Amend/(1)/76 dated 22nd March, 1976. The Amendment was made in the rule
4(ii) by adding a proviso, which is in the following terms:
630 "Provided that a person who has
availed of concession under sub-rule (3) of rule (3) shall not be entitled to
the concession under this clause." The Government also issued a
notification No. G.S.R. 182/Const/Art/. 309/Amend/(2)/76 dated 9th August, 1976
making amendment in the definition of the expression 'military service' in rule
2 just to retreat from their previous commitments. It reads:
"For the purpose of these rules the
expression military service' means the service rendered by a person, who had
been enrolled or commissioned during the period of operation of the
proclamation of emergency made by the President under Article 352 of the Constitution
of India on 26th October, 1962 in any of the three wings of the Indian Armed
Forces (including the service as a Warrant Officer) during the period of the
said emergency or such other service as may hereafter be declared as military
service for the purpose of these rules. Any period of military training
followed by military service shall also be reckoned as military service."
This notification has been issued with retrospective effect from 1st of
November, 1966 and restricted the benefits of military service upto 10th of
January, 1968, the date on which the first emergency was lifted with the result
that the vested rights which accrued to the petitioners in 1969, 1970 and 1971
have been taken away.
Some of the ex-military officers challenged
the impugned amendment and the consequent gradation list by filing two
petitions, writ petition No.1088 of 1980 and writ petition No. 2065 of 1976 in
the High Court of Punjab and Haryana under Article 226 of the Constitution.
Both these writ petitions were dismissed by the High Court and they gave rise
to civil appeal Nos. 3096 and 3095 of 1980 respectively. Some of the
ex-military officers have filed writ petitions directly before this Court under
Article 32 of the Constitution and they are writ petition Nos. 6436 and 6437 of
1980.
The petitioners in the writ petitions under
Article 226 of the Constitution before the High Court challenged the amendment
of the Punjab Government National Emergency (Concession) Rules 631 1965 with
retrospective effect as violative of Arts. 14, 16, 19,31 and 311 of the
Constitution and prayed for the following relief:
1. The Punjab Government National Emergency
(Concession) Haryana First Amendment Rules, 1976 be declared ultras. Article 16
of the Constitution of India.
2. A writ in the nature of certiorari
quashing the seniority list of Haryana Service of Engineers, PWD (B & R
Branch), Class II be issued.
3. A writ in the nature of mandamus directing
respondents 1 and 2 to declare the petitioners senior to respondents.
The High Court came to the conclusion that
the petitioners have availed of the concession under sub-rule (3) of rule 3 of
1965. Rules inasmuch as the educational qualifications in the case of the
petitioners had been relaxed in terms of sub-rule (3) of rule 3 and they had
availed of these concessions at the time of their recruitment as temporary
Assistant Engineers. Now by the impugned amendment the concession of double
benefit has been withdrawn by adding the proviso to cl. (ii) of rule 4
introduced in 1976. previously an ex-servicemen could avail of the concession
of relaxation in the educational qualification at the time of recruitment on
the basis of his military service. Under rule 4 he could count military service
towards seniority. The proviso has taken away the second benefit. The
ex-serviceman who has been recruited after availing of the concession in
academic qualifications cannot count his military service towards seniority in
the civil post held by him. This concession has been withdrawn by the Governor in
exercise of his powers under proviso to Art. 309 of the Constitution and the
amendment having been made in exercise of the legislative powers conferred on
the Governor by the Constitution are valid and suffer from no infirmity. The
High Court also took the view that there is no estoppel against the Government
in the exercise of its legislative sovereign or executive powers. The State
could amend the 1965 Rules and take away the benefits bestowed on the
petitioners. It also held that the rules can be framed with retrospective
effect and they can take away even vested rights. In the opinion of the Eight
Court the diploma holders in engineering on the basis of their educational
qualification formed one class separate from other ex- emergency commissioned
officer who are degree holders in engineering and that classification in the
service can be made on 632 the basis of educational qualifications and such a
classification is not bad.
The appellants in the appeals against this
judgment of the High Court reiterated the same contentions before this Court.
In the two petitions under Art. 32 of Constitution also similar points have
been raised. The main contention on behalf of the appellants as well as on
behalf of the petitioners is that the rules could not be amended with
retrospective effect to deprive them of the vested rights and if the appellants
and the petitioners are entitled to the benefits of military service per force
they would be much more senior to others and the gradation list prepared in
complete ignorance of the military service will not be according to law.
It may be pointed out at the very outset that
the Parliament as also the State Legislature have plenary powers to legislate
within the field of legislation committed to them and subject to certain
constitutional restrictions they can legislate prospectively as well as
retrospectively. It is, however, a cardinal principle of construction that
every statute is prima facie prospective unless it is expressly or by necessary
implication made to have retrospective effect.
But the rule in general is applicable where
the object of the statute is to affect the vested rights or to impose new
burden or to impair existing obligations. Unless there are words in the statute
sufficient to show the intention of the legislature to affect existing rights,
it is deemed to be prospective only. Provisions which touch a right in
existence at the passing of the statute are not to be applied retrospectively
in the absence of express enactment or necessary intendment. The Governor can
also exercise the same powers under Art. 309 of the Constitution and there is
not the slightest doubt that the impugned amendment brought in has been made
retrospective. The impugned amendment in the instant case by necessary
implication have undoubtedly a retrospective effect.
For the petitioners it was contended that the
benefits acquired could not be taken away by an amendment with retrospective
effect. It was further contended that the amendment was discriminatory and that
the retrospectivity given to the provisions of the Amending Act could not cure
the discrimination introduced by the Act and sought to be perpetuated by it. In
support of this contention reliance was placed upon Harbhajan Singh v. The
State of Punjab.
633 In that case the question that fell for
consideration before the Constitution Bench of the Punjab and Haryana High
Court was regarding the interpretation of rule 3(iii)(cc)(ii)(b) of the
Demobilised Indian Armed Forces Personnel (Reservation of Vacancies) in Punjab
Civil Service (Judicial Branch) (First Amendment) Rules, 1976. The Demobilised
Indian Armed Forces Personnel (Reservation of Vacancies) in the Punjab Civil
Service (Judicial Branch) Rules, 1969, had been repealed and the Demobilised
Indian Armed Forces Personnel (Reservation of Vacancies) in the Punjab Civil
Service (Judicial Branch) Rules, 1975, as amended, were in force and these
excluded from the category of released Armed Forces Personnel, persons who had
joined a civil service of the Union or a State or a civil post under the Union
or a State after their release from the Armed Forces of the Union. The Court
dealing with the question observed:
"Now the rule-making authority must have
been aware that a competitive examination for appointment to the service had
been held under the old rules and appointments were yet in the offing. Surely,
the rule- making authority did not intend to exclude from appointment
candidates who were eligible under the old rules but became ineligible by
reason of an amendment of the rules made after the process of selection had
almost reached a final stage. The amendment did not in any manner touch the
qualifications of the candidates.
Had the amended rule been in force from the
beginning, persons in the position of the petitioner might not have accepted
any employment and preferred to wait for selection and appointment to the
Punjab Civil Service (judicial Branch). Are they to be penalised "by
barring their entry into the Punjab Civil Service (Judicial Branch) because
they accepted employment at a time when acceptance of such employment was not a
bar to appointment to the service ? We do not think that we will be justified
in attributing such an unreasonable intention to the rule-making authority. In
our view, the only reasonable interpretation of the amended rule, consistent
with the prevailing situation, is to hold that only those persons who having
joined the service of the Union or the State or a post under the Union or the
State previously continued to hold the post on the date of the coming into
force of the rule, are excluded from appointment to the Punjab Civil Service
(Judicial Branch). The expression 'joined 634 or joins' must be given a
reasonable interpretation in the context of the situation and we think that our
interpretation does not strain the language or attributes unreasonableness to
the rule-making authority. In that view, the petitioner cannot be said to be
ineligible for appointment." Next reliance was placed upon Ex-Major N.C.
Singhal v. Director General, Armed Forces Medical Service. In that case the
conditions of service of the appellant were governed by paragraph 13 of the
Army Instruction No I/S of 1954 and his previous full pay commissioned service
should have been taken in the matter of 'antedate' for the purpose of his pay.
The conditions of service were, however, sought to be altered by Army
Instruction No. 176 of 1965 to the prejudice of the appellant. This Court held
that the conditions of service in this regard were not liable to be altered or
modified to the prejudice of the appellant by a subsequent administrative
(Army?) instruction which was given retrospective effect from 26th October,
1962.
Reliance was also placed upon State of Mysore
v. M.N. Kirshna Murthy & Ors. In that case also the rules of 1959 had been
amended which sought to disintegrate the service which had been integrated.
This Court held that such amendment made for the purpose of justifying the
illegal promotion made, in the teeth of the protection conferred by Articles 14
and 16(1) of the Constitution of India upon Indian citizens in Government
service, could not be upheld.
The power of making rules relating to
recruitment and conditions of service under the proviso to Article 309 could
not be used to validate unconstitutional discrimination in promotional chances
of Government servants who belonged to the same category.
Shri Mahajan appearing for respondent No. 1
in reply on the other hand contended that the rules made under the proviso to
Article 309 of the Constitution are legislative in character and, therefore,
can be given effect retrospectively. In support of his submission he counted
upon Raj Kumar v. Union of India & Ors.
He also relied on Wing Commander J. Kumar v.
Union of India & Ors. In that case a contention was raised that the
impugned rule 635 not having been specifically declared to be retrospective in
operation, its provisions cannot be applied to the appellant inasmuch as he had
been inducted into the R & D cadre long prior to the promulgation of the
new rules. This Court dealing with the point observed:
"We have already found that, as a matter
of fact the practice generally followed in the R & D Organisation even
prior to the promulgation of the impugned rules, was to reckon seniority with
reference to the date of attainment of the rank of substantive
major/equivalent. Even otherwise, when a statutory rule governing seniority is
issued in respect of a service, the said rule would govern the personnel in the
service with effect from the date of its promulgation and in so giving effect
to the rule in future, there is no element of retroactivity involved. Of
course, the rules will not operate to deprive any person of promotions already
earned in the past, but, for purposes of future promotions and seniority in the
department, the principles laid down in the impugned rule will necessarily
govern all the personnel alike." This case instead of supporting the
contention of Shri Mahajan goes to strengthen the contention raised on behalf
of the appellant and the petitioners.
Much emphasis was laid by Shri Mahajan on the
case of B.S. Vadera v. Union of India & Ors. In that case the petitioners,
who were working as Assistants, were reverted as Upper Division Clerk in 1967
by the operation of the Railway Board's Secretariat Clerical Service
(Reorganisaion) Scheme. The said scheme was framed on February 5, 1957 but was
brought into effect from December 1, 1954. Certain modifications to the scheme
relating to the manner of filing up of permanent and temporary vacancies in
Grade I of the Service were made in 1963. The petitioners challenged the orders
of reversion as illegal inasmuch as their promotion as Upper Division Clerks
and later as Assistants had been on a permanent basis and could not be
disturbed and that the scheme as well as the various orders passed by the
respondents were violative of Articles 14 and 16 of the Constitution, that the
Railway Board had no power in law to frame either the scheme or to modify the
scheme so as to have retrospective effect from December 1, 1954. This Court
held that the ranking given to the petitioners as a result 636 of which the
impugned orders of reversion were passed was in accordance with the scheme as
modified in 1963, and once it is held that the petitioners did not satisfy the
requirement of the scheme for being retained as Assistants, there was no
question of any discrimination under Article 14 or violation of Article 16, and
that the Indian Railway Establishment Code had been issued by the President in
exercise of the powers vested in him by the proviso to Article 309 of the
Constitution. Rule 157 of the Code gives the Railway Board full powers to make
rules of general application to non- gazetted railway servants under their
control, and the power to make rules with retrospective effect cannot be denied
to the Railway Board. Accordingly, the scheme framed by the said Board in 1957
could be made retrospectively effective from December 1, 1954. This case
undoubtedly supports Shri Mahajan in his contention that the rules can be made
with retrospective effect and there is nothing wrong in such a rule. This case,
however, did not deal with the point specifically raised in the present case.
The question, however, has been pointedly
considered recently by a Constitution Bench of this Court in State of Gujarat
v. Raman Lal Keshav Lal Soni. In that case the Gujarat Panchayats Service was
initially constituted soon after the passing of the Gujarat Panchayats Act.
There were three cadres : the district cadre, the taluqa cadre and the local
cadre. Secretaries, Officers and servants of the old village panchayats under
the Bombay Village Panchayats Act, 1958 became secretaries, officers and
servants of the new gram panchayats under s.325(2)(x) of the Gujarat Panchayats
Act, 1961. Talatis and kotwals, who were government servants were secretaries
and officers of the old village panchayats under the Bombay Village Panchayats
Act and so they became secretaries and officers of the new gram panchayats
under the Gujarat Panchayats Act. 1961. Some municipalities constituted for
municipal districts and municipal boroughs under the Bombay District Municipal
Act and the Bombay Municipal Boroughs Act, as applied to areas in the State of
Gujarat, were converted into Gram and Nagar Panchayats under section 307 of the
Gujarat Panchayats Act and all officers and servants in the employ of such
municipalities became officers and servants of interim Panchayats and allocated
to the panchayat service. Thus, secretaries and officers of dissolved
municipalities also became secretaries and officers of Gram and Nagar
panchayats. District 637 Local Boards constituted under the Bombay Local Boards
Act stood dissolved on the passing of the Gujarat Panchayats Act and all
officers and servants in the employment of the Board were deemed to be
transferred to the service of the successor District Panchayat under section
326 of the Gujarat Panchayats Act. Also allocated to the panchayat service were
those government servants who are transferred to the panchayat under section
157 and such other officers and servants employed in the state service as were
necessary. All these secretaries, officers and servants became members of a
service under the State as soon as they were allocated to the panchayat service
But, by the Amending Act, secretaries, officers and servants of Gram and Nagar
Panchayat who were allocated to the panchayat service from the ranks of the
ex-municipal employees were sought to be meted out differential treatment from
the other members of the panchayat service, more particularly the secretaries,
officer and servants of Gram and Nagar Panchayats who were drawn from the ranks
of secretaries, officer and servants of old village panchayats, that is, the
Talatis and Kotwals.
Their status as members of a service under
the state was to go with no option to them. Retrospectivity was sought to be
given to the Amending Act so that they could not claim that they were ever
government servants and so could not be made to cease to be government servants
and so that they could not claim that they were singled out for differential
treatment for if they were never in the panchayat service they could not
complain of being taken out of the panchayat service. Brother O. Chinnappa
Reddy speaking for the Court emphatically observed:- Now in 1978 before the
Amending Act was passed thanks to the provisions of the principle Act of 1961
the ex-municipal employees who had been allocated to the panchayat service as
Secretaries Officer and servants of Gram and Nagar Panchayats, had achieved the
status of government servants. Their status as government servants could not be
extinguished so long as the posts were not abolished and their services were
not terminated in accordance with the provisions of Article 311 of the
Constitution. Nor was it permissible to single them out for differential
treatment. That would offend Article 14 of the Constitution. An attempt was
made to justify the purported differentiation on the basis of history and
ancestry as it were. It was said that Talatis and Kotwals who became secretaries,
officers and servants of Gram and Nagar Panchayats were government servants,
even to start 638 with, while municipal employees who became such secretaries,
officers and servants of Gram and Nagar Panchayats were not. Each carried the
mark or the 'brand' of his origin and a classification on the basis of the
source from which they came into the service, it was claimed, was permissible.
We are clear that it is not. Once they had joined the common stream of service
to perform the same duties, it is clearly not permissible to make any
classification on the basis of their origin. Such a classification would be
unreasonable and entirely irrelevant to the object sought to be achieved. It is
to navigate around these two obstacles of Article 311 and Article 14 that the
Amending Act is sought to be made retrospective, to bring about an artificial
situation as if the erstwhile municipal employees never became members of a
service under the State. Can a law be made to destroy today's accrued
constitutional rights by artificially reverting to a situation which existed 17
years ago ? No.
The legislation is pure and simple
self-deceptive if we may use such an expression with reference to a legislature
made law. The legislature is undoubtedly competent to legislate with
retrospective effect to take away or impair any vested right acquired under
existing laws but since the laws are made under a written Constitution and have
to conform to the dos and don'ts of the Constitution, neither prospective nor
retrospective laws can be made so to contravene fundamental rights. The law
must satisfy the requirements of the Constitution today taking into account the
accrued or acquired rights of the parties today. The law cannot say 20 years
ago the parties had no rights, therefore, the requirements of the Constitution
will be satisfied if the law is dated back by 20 years. We are concerned with
today's rights and not yesterday's. A legislature cannot legislate today with
reference to a situation that obtained 20 years ago and ignore the march of
events and the constitutional rights accrued in the course of the 20 years.
That would be most arbitrary, unreasonable and a negation of
history.......Today's equals cannot be made unequal by saying that they were
unequal 20 years ago and we will restore that position by making a law today
and making it retrospective. Constitutional rights, constitutional obligations
and constitutional consequences cannot be tampered with that way. A law which
if made today 639 would be plainly invalid as offending constitutional
provisions in the context of the existing situation cannot become valid by
being made retrospective. Past virtue (constitutional) cannot be made to wipe
out present vice (constitutional) by making retrospective laws. We are,
therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act
1978 is unconstitutional as it offends Articles 311 and 14 and is arbitrary and
unreasonable." In view of this latest pronouncement by the Constitution
Bench of this Court, the law appears to be well settled and the Haryana
Government cannot take away the accrued rights of the petitioners and the
appellants by making amendment of the rules with retrospective effect.
For the foregoing discussion the writ
petitions as well as the appeals are allowed and the orders of the High Court
dated October 10, 1980 are quashed and the impugned rule 4(ii) of the Punjab
Government National Emergency (Concessions) Rules 1965 as amended by the
Haryana Government Gazette Notification No.GSR 77/ Const/Art.
309/Amend/(1)/76 dated 22nd March 1976 and
the Notification No. GSR. 182/Const/Art. 309/Amend/(2)/76 dated 9 August 1976
amending the definition of the expression 'military service' in rule 2 are
declared to be ultra vires the Constitution in so far as they affect
prejudicially persons who had acquired rights as stated above. A writ in the
nature of mandamus is issued directing respondents Nos. 1 and 2 to prepare the
seniority list afresh in the light of the decision of this Court taking into
consideration the military service rendered by the petitioners as well as the
appellants.
In the circumstances of the case however
there will be no order as to costs.
S.R. Appeals & Petitions allowed.
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