S.S.
Bola & Ors Vs. B.D. Sardana & Ors [1997] INSC 602 (11 July 1997)
S.
SGHIR AHMAD
ACT:
HEADNOTE:
With
Civil Appeal Nos.423 of 1993, W.P. (C) No. 582/95 C.A. Nos. 1448-49 of 1993,
1452-53/93 and T.C. (C) Nos. 44-46/96,40/96
S.
SAHGIR AHMAD, J.
I have
had the advantage of going through the judgments prepared separately by brother
Ramaswamy and Brother Pattanaik. i agree with Brother Pattanaik on all the
questions involved in this case, but I want to ad a few words of my own without
setting out the facts of the case which have already been reproduced in the two
Judgements.
2. To
declare what the law is or has been is a judicial power. To declare what the
law shall be is a legislative power. this is the principle deducible from the
education of 86 (90) and Ogden vs. Black Ledge 1804(2) Lawyers Edition 276
(278).
3. It
would be within the exclusive domain of judiciary to expound the law as it is
and not to speculate what it should be as it is the function to the
Legislature. It is also within the exclusive power of the Judiciary to hold
that a statute passed by the Legislature is ultra vires. The Legislature in
that situation dose not become a helpless creature as it continues to remain a
living pillar of a living constitution. Though it cannot directly override the
judicial decision, it retains the plenary powers under Articles 245, 246 and
248 to alter the law as settled or declared by judicial decisions. This is what
was observed by this Court in M/S Anwar Khan Mahboob Co. vs. State of Madhya
Pradesh (1966) 2 SCR 40, Which had the effect of indirectly overruling it s
previous decision in Firm C.J. Patel & Co. & Ors. vs. The State of Madhya Pradesh AIR 1953 SC 108. The Legislature
can also validate an Act which was declared invalid by the Court or amend it with
retrospective effect so as to remove the grounds of its invalidity. (See Rai Ramkrishna
& Ors. vs. State of Bihar (1964) 1 SCR 897 and Mt. Jadao Bahuji
vs. Municipal Committee, Khandwa & Anr. AIR 1961 SC 1986.
4. The
power to make a law includes the power to give it retrospective effect subject
to the restriction imposed by Article 20(1) that a legislature cannot make
retrospective penal laws. It would be valid for the Legislature to make any
other enactment with retrospective effect provided no fundamental Right is
infringed by reasons of its taking away the vested right. Under the Scheme of
the constitution, it is competent for the Legislature to put an end to the
finality of a Judicial decision and, therefore, it would be competent for the
legislature to render ineffective the judgment of a court by changing the basis
of the Act upon which that judgment was founded (See: Shri Prithvi Cotton Mills
Ltd. & Anr. vs. Broach Borough Municipality & ors.
(1970)
1 SCR 388= (1962)2 SCC 522=(1933) Supp. 1 SCC 96.
Hidayatulah,
CJ. in Shri Prithvi Mills case observed as under:
"
When a Legislature sets out to validate a tax declared by a court to be
illegally collected under an ineffective or an invalid law, the cause for
ineffectiveness or invalidity must be removed before validation can be said to
condition, of Course, is that the Legislature must posess the power to impose
the tax, for, if it does not , the action must ever remain ineffective and
illegal. Granted legislative competence, it is not sufficient to declare merely
that the decision of the Court shall not bind for that is tantamount to
reversing the decision in exercise of judicial power which the Legislature does
not possess or exercise. A court's decision must always bind unless the
conditions on which it is based are go fundamentally altered that the decision
could not have been given in the altered circumstances." This decision was
consider ed in Madan Mohan Pathak vs.
Union of India & ors. (1978) 3 SCR 334= (1978) 2 SCC 50, but was not
doubted by the majority view in that case.
5. In Bhubaneshwar
Singh vs. Union of India (1994) 6 SCC 77, it was observed that any action in
exercise of the power under an enactment, which has been declared invalid by a
court, cannot be made valid by merely saying so unless the defect which has
been pointed out by the Court is removed with retrospective effect. It was
further observed that the Validating legislation must remove the Cause of
invalidity.
It was
father observed that till such defect as was pointed out by the Court in a
Statute was removed by the subsequent enactment with retrospective effect, the
binding nature of the Judgment of the Court cannot be ignored. In a situation
of this nature, it would be open to the Legislature to pass a Validating Act,
even with retrospective effect, removing the defect or the ground on which the
Statute was held to be bad or ultra vires.
6.
Where, however, the statutory provision is interpreted by the Court in a
particular manner and directions are issued for implementing the judgment in
the light of the interpretation placed on the statutory provisions, the
Legislature need not pass a Validating Act. In this situation, the Legislature
in exercise of its plenary powers under Articles 245,246 and 248 can make a new
Act altering fundamentally the provisions which were the basis of the judgment
passed by the Court. This can be done with retrospective effect. So far as
service conditions are concerned, they can be altered with retrospective effect
by making service rules under Article 309 or by an Act of the Legislature.
7. In
the instant case, the judgments rendered by this Court in the earlier decisions
relating to the seniority of the present incumbents were founded on the service
rules then existing These service rules have since been replaced by the
impugned Act which has been enforced with retrospective effect. The various
aspects of merits have been considered by my Brother Pattanaik an d I cannot
usefully add any further words on merits. I fully agree and endorse that in
view of the settled legal position, specially those set out in the decisions
referred to earlier as also in Comorin Match Industries (P) Ltd. vs. State of
Tamil Nadu (1996) 4 SCC 281, Indian Aluminium Company vs, State of Kerala
(1996) 7 SCC 637; and Meerut Development Authority & Ors. vs. Satbir Singh
& Ors., (1996) 11 SCC 462, the impugned Act, namely, the Haryana Act XX of
1995 is valid to the extent indicated by Brother Pattanaik. In this case the
rule of seniority has been altogether altered and replaced by a new law made
with retrospective effect so as to do away the mischief under which an undue
advantage was being provided to a direct recruit, which was wholly inequitous
and not sustainable on the principles of equity.
8. I
also agree that the judgments of the Punjab & Haryana High Court are liable
to be set aside, with a direction to the state Government to re determine the
question of seniority in the light of this judgment and the Haryana Act XX of
1995.
9. The
civil Appeals, the Writ Petition and the Transferred Cases are disposed of
accordingly with no order as to costs.
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