CMD/Chairman,
B.S.N.L. and others Vs Mishri Lal and Union of India and others Pushpawati
Singh
J U D G M E N T
Markandey Katju, J.
Civil Appeal No. 1405
of 2007
1.
This
appeal has been filed against the impugned judgment and order dated 16.12.2005 in
Civil Misc. Writ Petition No. 73843 of 2005 of the Division Bench of the
Allahabad High Court.
2.
Heard
learned counsel for the parties and perused the record.
3.
The
respondents 1 to 9 herein, filed a writ petition before the High Court praying for
quashing of the Recruitment Rules 2005 as well as the letters by which the writ
petitioners were told to appear in the Limited Internal Competitive Examination
for promotion to the post of Raj Bhasha Adhikari AD(OL) which was to be held
under the supervision of the CGMT UP(East), Circle , Lucknow as well as issuing
a writ of mandamus restraining the appellants herein from interfering in the working
of the respondents as AD(OL) on their respective posts and to continue to pay
them their salaries. The aforesaid writ petition was allowed by the impugned
judgment and hence this appeal.
4.
It
was pointed out by learned counsel for the appellants that the impugned Raj Bhasha
Adhikari Recruitment Rules 2005 were quashed by the High Court without service of
any notice of the writ petition on the appellants (respondents 3 to 6 in the writ
petition) and that too at the preliminary stage of admission on the basis of an
alleged submission of a counsel who did not have any authority and Vaklatnama
in his favour by the appellants and who had not been given any instruction to appear
on their behalf. We agree with this submission.
5.
When
rules are challenged it is necessary to have the matter gone into in depth by
inviting a counter affidavit and examining the matter in detail. A summary
disposal of a writ petition by allowing it without even calling for a counter
affidavit and quashing the rules, in our opinion, is totally against any
established procedure of law.
6.
Apart
from the above, on merits also we are of the opinion that the writ petition
deserved to be dismissed and was wrongly allowed.
7.
Article
343(1) of the Constitution of India states that the official language of the
Union of India shall be Hindi in Devnagari script. To fulfill the mandate of this
provision the Government of India, Ministry of Communications, decided to have
a Hindi Cell in each Central Government department and Central Government instrumentality
with the object of promoting progressive use of Hindi in the official notings and
communications. Accordingly, it framed Rules in 1983 under Article 309 of the Constitution.
In 1983, there were 43 posts of Hindi Officers in the department and it was
provided that 50% of the posts will be filled up by direct recruitment, 30% by promotion
and 20% by transfer on deputation. The essential qualification for holding the
post was Masters Degree in the concerned subject and 5 years' experience of
teaching, research, writing or 4journalism in Hindi. As far as promotions were
concerned, it was stipulated that Hindi Translator Grade-I with 3 years'
regular service in the grade could be selected by a Departmental Promotion Committee
in consultation with the Union Public Service Commission.
8.
In
April 1994, the Department of Telecommunications decided that since the subordinate
units (Telecom Circles) were facing difficulties in filling up the posts as per
the existing provisions, the posts of Hindi Officers may be filled up amongst the
cadre of Hindi Translator Grade-I/Grade-II/Grade-III with 3, 5 or 8 years'
service respectively in the Circle/District concerned, failing which the posts
may be filled up from amongst the Group `C' cadres based on length of service possessing
the qualifications in the Recruitment Rules.
9.
On
1.10.2000, the Department of Telecommunications was reorganized with the
formation of Bharat Sanchar Nigam Limited (in short `BSNL') as a Government Company
to take charge of the operations and maintenance of telecom and telegraph network
of the entire country. The respondents herein after formation of BSNL were given
option for absorption in the Corporation in the level of Junior Hindi
Translators, which option they exercised and they were absorbed accordingly.
10.
There
were some objections to the Recruitment Rules of 2002 which had been circulated
departmentally, but allegedly these Rules were never in operation at any point
of time. Accordingly, the revised Recruitment Rules 2005 were formulated and issued
on 5.8.2005 whereby 120 posts were classified as Executive with the nomenclature
of Raj Bhasha Adhikari. While the educational qualifications remained the same
as before, the mode of recruitment was totally changed in the Recruitment Rules
of 2005. The entire cadre was to be filled up by a Limited Internal Competitive
Examination. It is these Rules which have been struck down by the High Court.
11.
It
may be mentioned that the respondents herein were never regularly promoted as
Hindi Officer at any point of time either under the 1984 Rules or Recruitment
Rules, 2002. They had never been appointed on the basis of the recommendation of
the Departmental Promotion Committee duly approved by the Union Public Service Commission.
In fact, they were appointed purely on a local officiating basis under the
powers delegated to the Heads of Telecom Circles on the basis of administrative
instructions dated 28.4.1994. Thus, they were never regular appointees and
hence had no vested rights for promotion to the post of Hindi Officer under the
Recruitment Rules of 2002, which, in fact, were never in operation at any point
of time. Besides this, when the revised Recruitment Rules 2005 were formulated,
120 posts were classified as Executive, and for the Executive cadre posts, the
mode of recruitment was changed and it was now to be filled up by a Limited Internal
Competitive Examination. It cannot now be allowed to be filled up by promotion
of persons working on officiating basis. In our opinion there was nothing
illegal in this change of policy.
12.
Rules
under Article 309 can be changed even during the subsistence of the old Rules. As
held in Raj Kumar vs. Union of India, AIR 1975 SC 1116 (vide para 7), "Rules
made under the proviso to Article 309 of the Constitution are legislative in
character, and therefore can be given effect to retrospectively." Thus, rules
under the proviso to Article 309 are Constitutional rules, not like rules under
a statute. Hence they have the same force as a Statute, though made by the
executive.
13.
It
is well settled that the legislature can legislate retrospectively vide M.P.V.
Sundararamier & Co. vs. State of Andhra Pradesh, AIR 1958 SC 468, J.K. Jute
Mills vs. State of Uttar Pradesh, AIR 1961 SC 1534, Jadao Bahuji vs. Municipal Committee,
AIR 1961 SC 1486, Government of Andhra Pradesh vs. Hindustan Machine Tools Ltd.,
7AIR 1975 SC 2037 (para 8), Nandumal Girdharilal vs. State of Uttar Pradesh,
AIR 1992 SC 2084, etc.
14.
Hence,
the approach of the High Court, in our opinion, was totally incorrect. In State
of Punjab and others vs. Arun Aggarwal and others (2007) 10 SCC 402, it was
observed (in para 30): "There is no quarrel over the proposition of law
that the normal rule is that the vacancy prior to the new Rules would be governed
by the old Rules and not the new Rules. However, in the present case, we have already
held that the Government has taken a conscious decision not to fill the vacancy
under the old Rules and that such decision has been validly taken keeping in
view the facts and circumstances of the case".
15.
In
the present case, a conscious decision was taken in 2005 providing that all the
posts in question should be filled up by Limited Internal Competitive Examination.
This was a policy decision and we cannot see how the High Court could have
found fault with it. It is well settled that the Court cannot ordinarily
interfere with policy decisions.
16.
No
doubt in some decisions it was held that a vested right cannot be taken away by
amendment of the rules. But what does this really mean? Since a rule under the
proviso to Article 309 is legislative in character vide Raj Kumar vs. Union of
India (supra) the rule can be amended, even with 8retrospective effect, just as
a legislation can be amended with retrospective effect.
17.
In
our opinion the expression `vested right' could only mean a vested
Constitutional right, since a Constitutional right cannot be taken away by
amendment of the rules.
18.
This
is evident from the Constitution Bench decision of this Court in Chairman,
Railway Board vs. C.R. Rangadhamaiah (1997) 6 SCC 623. It was held therein that
pension is no longer treated as a bounty but was a valuable Constitutional right
under Articles 19(1)(f) and 31(1) of the Constitution, which were available on
1.1.1973 and 1.4.1974 (that is before the 44th Constitution Amendment). Since
this was a Constitutional right it could not be taken away by amendment of the
rules. The Constitution is the supreme law of the land, and hence a
Constitutional right can only be taken away by amending the Constitution, not
by amending the rules or even by amending the statute.
19.
Hence
in view of the aforesaid Constitution Bench decision the other decisions of
this Court of smaller benches must be understood to mean that a vested
Constitutional right cannot be taken away by amendment of the rules. It follows
that if the vested right is not a Constitutional right it can be taken 9away by
retrospective amendment of the rules. A legislative act can destroy existing rights,
(unless it is a Constitutional right). Thus, even a taxing statute can be made retrospectively,
and this usually affects existing rights vide Union of India vs. Madangopal,
AIR 1954 SC 158, Jawaharlal vs. State of Rajasthan, AIR 1966 SC 764(770), Tata
Iron & Steel Co. Ltd. vs. State of Bihar, AIR 1958 SC 452, D.G. Gouse &
Co. vs. State of Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar
Karkhana Ltd. vs. Collector, AIR 1979 SC 1972 (para 6-7), etc.
20.
A
rule made under the proviso to Article 309 is a legislative act (though made by
the executive). It is not a piece of delegated legislation like a rule made
under a statute. Hence it can be amended retrospectively.
21.
In
para 8 & 9 of the impugned judgment, the High Court has observed: "The
main and the central contention from the side of the petitioners is that since
the Old Rules specifically stated that since these Rules will remain effective for
three years, it was not for the respondent No. 3 to change these Rules before three
years, and to formulate new set of rules, changing the basic structure of promotion,
as petitioners who were already working on the post of AD (OL) as far back as
since 10.7.1995 on local officiating basis. We agree with the contention of the
learned counsel for the petitioner, because, Law and Equity as well as Honesty and
Fair Play jointly provide support of the petitioners' contention, that once it
has been laid down in the old Rules (Rule 10(iv) that they will not be changed for
three years, respondent No. 3 BSNL, who is a Government of India enterprise,
cannot change the Rules before expiry of three recruitment years, and cannot formulate
a new set of Rules detrimental to the interests of the petitioners. This undertaking
given by the respondent No. 3 in the earlier Rules, is sacrosanct, and the
respondent No. 3 is bound to honour the same. They cannot and should not be allowed
to say, a good-bye from the same. If they wanted to retain the right to change the
Rules, they should not have given an undertaking by framing sub-rule(iv) of Rule
10 of the Old Rules. But once they have given this assurance in the Rules, they
respondents cannot and should not be allowed to turn around and resile from the
same".
22.
We
are of the opinion that the above observations are not sustainable. When Rules are
framed under Article 309 of the Constitution, no undertaking need be given to
anybody and the Rules can be changed at any time. For instance, if the retirement
age is fixed by rules framed under Article 309 that can be changed subsequently
by an amendment even in respect of employees appointed before the amendment. Hence,
we cannot accept the view taken by the High Court. There is no question of
equity in this case because it is well settled that law prevails over equity if
there is a conflict. Equity can only supplement the law, and not supplant it. As
the Latin maxim states "Dura lex sed lex"' which means "The law
is hard, but it is the law".
23.
For
the aforementioned reasons, the appeal is allowed. The impugned judgment and
order of the High Court is set aside. There shall be no order as to costs Civil
Appeal No. 427 of 2008
24.
In
view of the decision in Civil Appeal No. 1405 of 2007, this appeal is allowed. The
impugned judgment and order of the High Court is set aside. No costs.
.................................J.
(Markandey Katju)
.................................J.
(Gyan Sudha Misra)
New
Delhi;
April
15, 2011
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