Full Judgment Text
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PETITIONER:
S.R. BHAGWAT & ORS.
Vs.
RESPONDENT:
THE STATE OF MYSORE
DATE OF JUDGMENT12/09/1995
BENCH:
MAJMUDAR S.B. (J)
BENCH:
MAJMUDAR S.B. (J)
BHARUCHA S.P. (J)
FAIZAN UDDIN (J)
CITATION:
1996 AIR 188 1995 SCC (6) 16
JT 1995 (6) 444 1995 SCALE (5)270
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.B. Majmudar, J.
William Macpeace Thakare in his lectures on "English
Humorists of 18th Century" spoke of Jonathan Swift working
in the household of Sir William Temple in the following
terms : "His servility was so boisterous that it looked like
independence". As will be highlighted in this judgment the
servility of judgment-debtor, State of Mysore, the precursor
of the State of Karnataka was eqally boisterous when it
tried to cast off its judgment debtor’s role by resorting to
legislative independence, which as will be demonstrated, has
remained a legally futile attempt.
This is a petition under Article 32 of the Constitution
of India. The petitioners have brought in challenge the
provisions of the Mysore Ordinance 1 of 1973, namely, The
Mysore State Civil Services (Regulation of Promotion, Pay
and Pension) Ordinance No. 1 of 1973. By an amendment to the
petition they have also brought in challenge the provisions
of the Karnataka State Civil Services (Regulation of
Promotion, Pay and Pension) Act, 1973 (hereinafter referred
to as ‘the impugned Act’) which replaced the State
Ordinance. At the stage of arguments learned counsel for the
petitioners concentrated his attack on the provisions of
Sub-sections (2), (3), (4), (5), (6), and (8) of Section 4
as well as Section 11 Sub-section (2) of the Act in so far
as they conflicted with the order of the High Court, which
had become final between the parties. It is not necessary to
refer hereinafter to the provisions of the erstwhile
Ordinance which has been replaced by the Act, the provisions
of which are brought on the anvil of scrutiny in this
petition.
Background Facts
In order to highlight the grievance of the petitioners
against the impugned provisions of the Act it is necessary
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to note at the outset the facts leading to this petition.
Petitioners Nos. 1 to 5 were civil servants of the erstwhile
State of Hyderabad and Bombay. Their services stood allotted
to the new State of Mysore under Section 115 of the States
Reorganisation Act, 1956 (hereinafter referred to as the
‘Reorganisation Act’). The new State of Mysore was formed
with effect from 1.11.1956 under the provisions of the
Reorganisation Act, enacted by the Parliament in exercise of
its powers under Articles 3 and 4 of the Constitution of
India. Section 115 of the Reorganisation Act provided for
allotment of civil servants of the erstwhile States
territories of which were transferred to the successor State
by the provisions of Part II of the Act and accordingly the
petitioners’ services stood statutorily allotted to the new
State of Mysore. In this context the Parliament conferred
the power of integration of services on the Central
Government under Section 115(5) of Reorganisation Act.
Accordingly integration of services took effect from
1.11.1956.
After the reorganisation of the States the Central
Government for purposes of effecting integration of services
laid down the principles relating to equation of posts and
the preparation of seniority lists. The Central Government
also directed the State Government to decide provisionally
the equation of posts and also to fix seniority and to call
for representations from the aggrieved officials, to send
the same for final decision by the Government of India. In
pursuance of the directions of the Central Government, the
State Government took its own time to prepare provisional
Inter-State Seniority Lists and to call for objections. The
State Government also directed the appointing authorities of
the new State of Mysore to make provisional promotions on
the basis of the provisional inter-State Seniority Lists
subject to the clear condition that promotion should be
revised in accordance with the ranking in the Final
Seniority Lists to be effective from 1.11.1956 as decided by
the Government of India in exercise of its powers under
Section 115(5) of the Reorganisation Act. Sub-section (7) of
Section 115 of the Reorganisation Act laid down that,
‘nothing in this section shall be deemed to affect after the
appointed day the operation of the provisions of Chapter I
of Part XIV of the Constitution in relation to the
determination of the conditions of service of persons
serving in connection with the affairs of the Union or any
State, provided that the conditions of service applicable
immediately before the appointed day to the case of any
person referred to in sub-section (1) or sub-section (2)
shall not be varied to his disadvantage except with the
previous approval of the Central Government.’
On account of aforesaid integration of services of
employees of States which got reorganised as aforesaid, till
the inter-se seniority of the concerned allotted employees
of such States was finally determined by the Central
Government as required by Sub-section (5) of Section 115 of
Reorganisation Act, the reorganised States like the State of
Mysore were permitted to act on the basis of provisional
seniority list of such employees and to effect promotions on
that basis so that the administration of the reorganised
States might not suffer. But that was subject to the rider
that the said provisional list was subject to alterations
when final list was prepared and once that happened the
concerned State Government had to give effect to the final
list. The said principle was laid down by this Court in the
case of G.S. Ramaswamy etc. etc. v. The Inspector General of
Police, Mysore State, Bangalore AIR 1966 SC 175 at page 180
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as under :
"The next point that has been urged is
that in any case till final integration
of service was made, the State
Government was not entitled to take into
account the provisional list of sub-
inspectors and could only proceed to
give promotions and to make transfers
region-wise according to the eligibility
lists of former States from which the
territories came to the new State and if
that was done the petitioners being
senior in their region could not be
reverted............ We can see nothing
in law which prevents the State
Government from proceeding according to
the provisional list after such list was
prepared. We are of opinion that the
view taken by the Mysore High Court in
the earlier writ petitions after the
framing of the provisional seniority
list is correct and the State Government
would be entitled to act on that list
subject of course to this that if the
provisional list is in any way altered
when the final list is prepared, the
State Government would give effect to
the final list."
Petitioners Nos.1, 2 and 4 had joined service in the
former State of Bombay and were on 31.10.1956 in the
category of Deputy Conservator of Forests. Petitioner No.3
was also a Deputy Conservator of Forests in the former
Hyderabad State. In the year 1957 the State Government made
provisional equation. The posts of Senior Conservator of
Forests and Assistant Conservator of Forests, were equated
with the post of Deputy Conservator of Forests coming from
Hyderabad and Bombay. This was objected to by the
petitioners and others. The State Government again published
a list in 1960 with slight modification. However, the
Central Advisory Committee to whom the representations were
forwarded as per the provisions of Sub-section (5) of
Section 115 of the Reorganisation Act, accepted the
petitioners’ contentions. As a result in category III only
the officials, namely, Deputy Conservator of Forests of
Hyderabad and Bombay and Senior Assistant Conservator of
Forests from Mysore were included. The Government of India
accepted the said equation and communicated it to the State
Government on 7.11.1962.
Thereafter several writ petitions were presented before
the Mysore High Court being Writ Petition No.2186 of 1963
and others. They were disposed of by the High Court. The
main judgment was rendered in Shankariah v. Union of India
1965(2) Mysore Law Journal 40. The correctness of this
decision was challenged before this Court. But the appeals
were dismissed. Even thereafter in accordance with the
directions of the Central Advisory Committee the Union
Government again considered the matter and fresh
notifications were issued in May 1969. These notifications
were on the same line as the earlier notifications. A fresh
batch of writ petitions was filed before the High Court of
Mysore which dismissed them by order dated 21.9.1971.
Special Leave Petitions against this decision were also
dismissed by this Court on 22.12.1972. Thus final
adjudication was made regarding the claim of petitioners and
others similarly situated for equation and seniority.
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In the background of the aforesaid settled legal
position the petitioners claimed that though they were
senior in the final seniority lists to many others, their
juniors had got promoted in the meantime on the basis of
higher ranking in the provisional seniority list which was
earlier operative till it got superseded by the final
seniority list as aforesaid. As their claim for being
granted deemed dates of promotions with all consequential
benefits was not accepted by the State of Mysore, the
petitioners filed writ petitions before the High Court of
Karnataka being Writ Petitions Nos. 2598 of 1970 and others.
All these five writ petitions filed by the petitioners came
to be allowed by a Division Bench of the High Court of
Mysore at Bangalore by an order dated 21.9.1971. The State
of Mysore was the first respondent in those petitions and
which is the main respondent in the present writ petition.
While allowing these writ petitions the Division Bench of
the High Court granted relief to the petitioners in the
following terms :
"We, therefore, make a common order in
all these writ petitions that the case
of each of these petitioners be
considered for promotion to the post
next above the cadre of the post he was
holding on 1.11.1956 as on the date on
which any one of his juniors according
to the final inter State Seniority List
was for the first time so promoted and
that if he is found fit and promoted he
be given all including consideration for
promotion to higher cadres and financial
benefits. Time three months."
It is not in dispute between the parties that pursuant
to the aforesaid direction issued by the Division Bench of
the High Court the respondent-State has considered the cases
of all the petitioners for being granted deemed dates of
promotions and they have been given such deemed dates of
promotions. The aforesaid decision of the Division Bench has
become final between the parties. As consequential monetary
benefits on the grant of deemed promotions to the
petitioners as directed by the aforesaid decision were not
made available to the petitioners they filed contempt
petitions in the High Court. These contempt petitions were
got adjourned from time to time before the High Court by the
respondent-State. In the meantime the respondent-State
resorted to its legislative powers and issued the impugned
Ordinance which ultimately culminated into the impugned Act.
By the impugned provisions of the Ordinance and the Act the
actual financial benefits directed to be made available to
the petitioners pursuant to the orders of the Division Bench
of the High Court which had become final are sought to be
taken away as can be seen from the scrutiny of the Act. It
is under these circumstances that the petitioners filed this
petition under Article 32 for getting a declaration that the
impugned provisions in so far as they tried to confiscate
the financial benefits made available to them by the writs
of mandamus issued by the High Court are null and void as
they amount to legislative over-ruling of binding judicial
decisions and seek to deprive them of their fundamental
rights guaranteed under the Constitution.
Rival Contentions
Learned counsel for the petitioners in support of his
submission has relied upon a number of decisions of this
Court with a view to submitting that the impugned provisions
clearly seek to nullify final binding dicisions of the High
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Court against the State and in favour of the petitioners. It
is an admitted position that common decision of the Division
Bench of the High Court, has not been challenged higher up
by the respondent-State. Learned senior counsel for the
respondent Shri Madhava Reddy on the other hand fairly
submitted that he could not support provisions which
attempted to bypass the High Court’s directions. His
principal submission, however, was that consequential
financial benefits directed by the High Court did not cover
monetary benefits flowing from deemed promotions. He also in
passing submitted that the foundation of the High Court
judgment was displaced by the impugned Act but ultimately
did not pursue the point any further. Hence we need not
dilate on that additional aspect any further.
Conclusion and Reasons for the same
Having given our anxious consideration to rival
contentions we have reached the conclusion that the impugned
provision of the Act, namely, Section 11 Sub-section (2) is
clearly ultra vires the powers of the State Legislature as
it encroaches upon the judicial field and tries to over-rule
the judicial decision binding between the parties and
consequently the relevant sub-sections of Section 4 which
are also in challenge will have to be read down as indicated
hereinafter in this judgment. Before we advert to the
relevant provisions of the impugned Karnataka Act it will be
appropriate to keep in view the settled legal position
governing the present controversy.
It is now well settled by a catena of decisions of this
Court that a binding judicial pronouncement between the
parties cannot be made ineffective with the aid of any
legislative power by enacting a provision which in substance
over-rules such judgment and is not in the realm of a
legislative enactment which displaces the basis or
foundation of the judgment and uniformly applies to a class
of persons concerned with the entire subject sought to be
covered by such an enactment having retrospective effect. We
may only refer to two of these judgments.
A Constitution Bench of this Court in the case of
Cauvery Water Disputes Tribunal (1993 Supp. (1) SCC 96(II)
had to pronounce on the validity of Karnataka Kauvery Basin
Irrigation Protection Ordinance, 1991 by which an interim
order passed by a statutory Tribunal supported by the
decision of this Court dated 26th April 1991 which had ruled
that the Tribunal had power to consider the question of
granting interim relief since it was specifically referred
to it, was sought to be displaced. Sawant, J., speaking for
the Constitution Bench held that the said provisions were
unconstitutional and ultra vires. In paragraph 76 of the
Report the following observations were made :
"The principle which emerges from these
authorities is that the legislature can
change the basis on which a decision is
given by the Court and thus change the
law in general, which will affect a
class of persons and events at large. It
cannot, however, set aside an individual
decision inter partes and affect their
rights and liabilities alone. Such an
act on the part of the legislature
amounts to exercising the judicial power
of the State and to functioning as an
appellate court or tribunal."
In the case of G.C. Kanungo V. State of Orissa (JT 1995
(4) SC 589) a Division Bench of this Court speaking through
Venkatachala, J., had to consider the validity of
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Arbitration (Orissa Second Amendment) Act, 1991 which sought
to nullify the awards made by the Special Arbitration
Tribunals constituted under the 1984 Amendment Act, in
exercise of the power conferred upon them by the Act itself.
Striking down the provisions as ultra vires and illegal
Venkatachala, J., made the following observations in
paragraph 28 of the Report :
"Thus, the impugned 1991 Amendment Act
seeks to nullify the awards made by the
Special Arbitration Tribunals
constituted under the 1984 Amendment
Act, in exercise of the power conferred
upon them by that Act itself. When, the
awards made under the 1984 Amendment Act
by the Special Arbitration Tribunals in
exercise of the State judicial power
conferred upon them which cannot be
regarded as those merged in Rules of
Court or judgments and decrees of
Courts, are sought to be nullified by
1991 Amendment Act, it admits of no
doubt that legislative power of the
State Legislature is used by enacting
impugned 1991 Amendment Act to nullify
or abrogate the awards of the Special
Arbitration Tribunals by arrogating to
itself, a judicial power. [See Re:
Cauvery Water Disputes Tribunal (1991)
Supp. 2 SCR 497]. From this, it follows
that the State Legislature by enacting
the 1991 Amendment Act has encroached
upon the judicial power entrusted to
judicial authority resulting in
infringement of a basic feature of the
Constitution - the Rule of Law. Thus,
when the 1991 Amendment Act nullifies
the awards of the Special Arbitration
Tribunals, made in exercise of the
judicial power conferred upon them under
the 1984 Amendment Act, by encroaching
upon the judicial power of the State, we
have no option but to declare it as
unconstitutional having regard to the
well settled and undisputed legal
position that a legislature has no
legislative power to render ineffective
the earlier judicial decisions by making
a law which simply declares the earlier
judicial decisions as invalid and not
binding, for such powers, if exercised,
would not be legislative power exercised
by it, but judicial power exercised by
it encoaching upon the judicial power of
the State Vested in a judicial Tribunal
as the Special Arbitration Tribunals
under 1984 Amendment Act. Moreover,
where the arbitral awards sought to be
nullified under the 1991 Amendment Act
are those made by Special Arbitration
Tribunals constituted by the State
itself under 1984 Amendment Act to
decide arbitral disputes to which State
was a party, it cannot be permitted to
undo such arbitral awards which have
gone against it, by having recourse to
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its legislative power for grant of such
permission as could result in allowing
the State, if nothing else, abuse of its
power of legislation."
In view of the aforesaid settled legal position let us
see how far the impugned provisions of the Act bear
scrutiny.
We may note at the very outset that in the present case
the High Court had not struck down any legislation which was
sought to be re-enacted after removing any defect
retrospectively by the impugned provisions. This is a case
where on interpretation of existing law, the High Court had
given certain benefits to the petitioners. That order of
mandamus was sought to be nullified by the enactment of the
impugned provisions in a new statute. This in our view would
be clearly impermissible legislative exercise.
As already mentioned earlier the petitioners have
attacked the impugned provisions only to the extent they
seek to deprive consequential financial benefits to them on
the basis of deemed promotion given to them by the State in
compliance with the decision of the Division Bench
aforesaid. Consequently we will examine the challenge only
from this limited angle. But before we do so it would be
appropriate to refer to the statutory settings in which the
impugned provisions saw the light of the day. The impugned
Karnataka Act 11 of 1974 is headed by very instructive
Preamble. It will be profitable to glance at the provisions
of the Preamble to the impugned Act :
"An Act to provide for the
prospective promotions of civil
servants, and to regulate the pay,
seniority, pension and other conditions
of service of civil servants in the
State of Karnataka including those that
are allotted or deemed to be allotted to
serve in connection with the affairs of
the State of Karnataka under or in
pursuance of section 115 of the States
Reorganisation Act, 1956:
Whereas on the basis of the ranking
of civil servants in the several inter-
State seniority lists prepared in
pursuance of sub-section (5) of section
115 of the States Reorganisation Act,
1956 (Central Act 37 of 1956), courts
have directed the making of
retrospective promotions to statutory
and other offices;
And whereas as held by the Supreme
Court in Ajit Singh Vs. State of Punjab,
reported in All India Reporter 1967,
Supreme Court 856 and in Income-Tax
Officer, Alleppy Vs. N.C. Ponnoose,
reported in All India Reporter 1970,
Supreme Court 385 appointments of civil
servants to offices in which statutory
functions are exerciseable cannot be
made with retrospective effect;
And whereas retrospective
promotions involve payment of sums of
money to persons who have not worked in
the promotional posts of officers
concerned, to the detriment of the
finances of the State, besides involving
retrospective reversions rendering
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invalid the statutory functions
discharged by the persons reverted;
And whereas retrospective
promotions preclude the determination of
the suitability of the civil servants to
hold the promotional posts or offices
and will enable them to continue in such
posts or offices only on the ground of
their eligibility to promotions,
resulting in the continuance of even
unsuitable civil servants in promotional
posts or offices to the detriment of
public interest;
And whereas it is necessary and
expedient to provide against the said
consequences:
And whereas the Central Government
has given previous approval under the
proviso to sub-section (7) of section
115 of the States Reorganisation Act,
1956 (Central Act 37 of 1956)
communicated in letter No. 5/5/73-SR (S)
dated 22nd February 1973 of the
Government of India, Cabinet
Secretariat, Department of Personnel and
Administrative Reforms;"
A mere look at the third and fourth paragraphs of this
preamble shows the legislative intent to bypass the final
directions contained in the Division Bench judgment of the
High Court or any other same final judgment in favour of
concerned parties that they may be given retrospective
promotions and all monetary benefits pursuant thereto.
Keeping in view the aforesaid key to the passing of the Act,
we will turn now to the relevant provisions of the Act. As
per sub-section (2) of Section 1 of the Act, Section 1 as
well as Sections 2 to 10 and 12 shall be deemed to have come
into force on the first day of November 1956. It is to be
noted that 1st November 1956, was the date on which the
States Reorganisation Act, 1956 was brought into force and
which date under the Reorganisation Act was treated as the
appointed day. Section 2 Clause (a) defines an ‘allottee’ to
mean, ‘a Government servant allotted or deemed to have been
allotted to serve in connection with the affairs of the
State of Karnataka under or in pursuance of Section 115 of
the States Reorganisation Act, 1956 (Central Act 37 of
1956)’. It is necessary to note that State of Mysore
subsequently got re-designated as State of Karnataka. As per
clause (c) of Section 2 ‘final seniority list’ means, ‘an
inter-State seniority list of allottees prepared in
accordance with the decisions of Central Government under
the provisions of sub-section (5) of Section 115 of the
States Reorganisation Act, 1956 (Central Act 37 of 1956)’.
Clause (d) of Section 2 defines ‘inter-State seniority list’
to mean, ‘an inter-State seniority list prepared from time
to time, on the basis of the seniority in which the
eligibility of an allottee to promotion to higher post or
posts is considered. As the petitioners are allottees within
the meaning of the said term as defined by Section 2(a) we
may straightaway turn to Section 4 of the Act which deals
with such allottees. As some parts of sub-sections of
Section 4 are brought in challenge in these proceedings it
will be profitable to reproduce entire Section 4 with its
sub-sections at this stage :
"4. Promotions, etc., of allottees -(1)
Where the seniority of an allottee as
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specified in the provisional inter-State
seniority list in any class of post or
office has been altered in the final
seniority list relating to that class,
every promotion made on any date after
the first day of November 1956, on the
basis of seniority-cum-merit, shall be
reviewed with reference to the
qualifications and other conditions laid
down in the rules of recruitment
applicable at the relevant time for such
promotion and the ranking in the final
seniority list assigned to the allottees
in that class of post or office. If any
person senior in rank than the person
promoted is held to be suitable for
promotion on such date (hereinafter in
this section referred to as the date of
eligibility), an order shall, subject to
section 9, be made promoting the said
person to officiate in the said post or
office with effect from a prospective
date to be specified in the order.
(2) As soon as may be, after the person
promoted under sub-section (1) is
declared to have satisfactorily
completed the period of officiation in
the promoted post or office an order
shall, subject to section 9, be made
directing that he shall be entitled to
initial pay on the date of actual
promotion to the post or office as if he
was holding the said post or office from
the date of eligibility and drawn the
pay and allowances accordingly, but such
person shall not be entitled to payment
of any arrears for the period prior to
the date of his actual promotion. His
rank in the seniority list of persons in
the class or grade of service to which
he is promoted shall be fixed as if he
had been promoted to that class or grade
of service on the date of eligibility.
(3) Where consequent upon the review of
promotions made under sub-section (1),
it is found that an allottee, who,
before the coming into force of sections
3, 11 and 13 had been promoted to a
higher class or grade of service found
eligible for promotion to that higher
class or grade of service from a date
prior to the date of actual promotion
and subject to section 9, is declared to
have satisfactorily completed the period
of officiation in the promoted post or
office, an order shall be made directing
that he shall be entitled to initial pay
on the date of actual promotion to the
post or office as if he was holding the
said post or office from the date on
which he is found eligible for promotion
and drawn the pay and allowances
accordingly, but he shall not be
entitled to payment of any arrears for
the period prior to the date of the
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actual promotion. [Where, on such review
he is found eligible for promotion to a
higher class or grade of service from a
date subsequent to the date of his
actual promotion to such class or grade
of service, his pay on the date of
eligibility shall be refixed as if he
had been promoted on such date but he
shall not be liable to refund the excess
pay and allowances drawn by him up to
the date of issue of the order fixing
the date of eligibility]. His rank in
the seniority list of persons in the
class or grade of service to which he is
promoted shall be fixed as if he had
been promoted to that class or grade of
service on the date on which he is found
eligible for promotion.
(4) Where an order is made in respect
of any allottee under sub-section (2)
or, as the case may be, under sub-
section (3), and the ranking in the
seniority list of persons in the
promoted class or grade of service, as
fixed by such order, stands revised, the
promotions made from that class or grade
of service to the next higher class or
grade of service shall be reviewed in
accordance with and subject to the
provisions of sub-section (1) as if
reference therein to the final seniority
list were references to the aforesaid
revised seniority list and the
provisions of sub-section (2) shall,
mutatis mutandis, be applicable to every
promotion so made.
(5) The provisions of sub-section (4),
mutatis mutandis, be applicable in
respect of promotions of allottees to
the next higher classes or grades of the
same service.
(6) The provisions of sub-section (3)
shall, mutatis mutandis, be applicable
in respect of review of promotions of
allottees made under sub-sections (4)
and (5).
(7) Where in respect of promotions on
the basis of seniority-cum-merit from
any class or grade of service to the
next higher class or grade of service,
the rules of recruitment require service
for a minimum period in the former class
or grade to become eligible for
promotion, the said period shall in its
application to an allottee eligible for
promotion under this section, be deemed
to be the period during which he
satisfactorily completes the period of
officiation in the post or office of
that class or grade of service and no
such minimum service shall be necessary
in the case of an allottee whose record
of service was satisfactory on the
relevant dates of eligibility or the
relevant dates on which he is found
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eligible for promotion.
(8) In respect of promotions from any
class or grade of service by selection
to the next higher class or grade of
service, where an allottee would have
been eligible for consideration if he
had been promoted to the former class or
grade of service on the basis of his
seniority in the final seniority list,
such allottee, shall, subject to section
9, be considered for selection to the
next higher class or grade of service,
immediately after he satisfactorily
completes the period of officiation in
the said former class or grade of
service. If he is selected and promoted
to the higher class or grade of service
and satisfactorily completes his period
of officiation in the said class or
grade, he shall be entitled to initial
pay on the date of actual promotion to
the said class or grade as if he was
holding the said post or office from the
date on which his immediate junior in
the lower class or grade was promoted to
the said class or grade of service, but
he shall not be entitled to payment of
any arrears for the period prior to the
date of his actual promotion. His rank
in the seniority list of the persons in
the said class or grade shall be fixed
as if he had been promoted on the date
immediately preceding the date on which
his immediate junior in the lower class
or grade was promoted to the selection
class or grade of service.
(9) An order under sub-section (2) in
respect of an allottee who had been
reduced to a lower stage in a time scale
and whose increment had been withheld
shall be subject to such modification as
the State Government may, by order
direct.
(10) No promotions of allottees made on
the basis of any provisional inter-State
seniority list, shall be reviewed except
after the publication of the final
seniority list and in the manner
provided in this section.
Explanation :- For purposes of this sub-
section provisional inter-State list
includes every inter-State seniority
list used as the basis for carrying on
the day-to-day administration whether
prepared by the State Government or
declared by court as operative until the
publication of the final seniority
list."
We may recapitulate at this stage that the petitioners
have mounted a limited attack on the impugned provisions of
the Act in so far as they deprive them of the monetary
benefits flowing from the deemed promotion to be given to
them pursuant to the orders of the Division Bench of the
High Court which have become final between the parties. We
have extracted the aforesaid Section with its relevant sub-
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sections wherein the impugned provisions of the concerned
clauses have been indicated by underlining them. Petitioners
contend that underlined portions of sub-sections (2), (3)
and (8) of Section 4 clearly fall within the teeth of
binding decision of the Division Bench of the High Court and
they are in clear conflict with the said binding decision.
As we are not concerned with other provisions of the Act
except Section 11(2) we may straightaway turn to Section 11.
The said provision deals with over-riding effect of the Act.
It reads as under :-
"Over-riding effect. - (1) The
provisions of this Act or of any order
made thereunder shall have effect
notwithstanding anything inconsistent
therewith contained in any law or order
having the force of law or rules made
under the proviso to Article 309 of the
Constitution of India for the time being
in force or any provision regulating the
conditions of service of any allottee or
in any order made by virtue of any such
law, rules or provisions.
(2) Notwithstanding anything contained
in any judgment, decree or order of any
court or other competent authority the
rights to which a civil servant is
entitled to in respect of matters to
which the provisions of this Act are
applicable, shall be determined in
accordance with the provisions of this
Act, and accordingly, any judgment,
decree or order directing promotion or
consideration for promotion of civil
servants and payment of salaries and
allowances consequent upon such
promotion shall be reviewed and orders
made in accordance with the provisions
of this Act."
A mere look at sub-section (2) of Section 11 shows that the
respondent, State of Karnataka, which was a party to the
decision of the Division Bench of the High Court against it
had tried to get out of the binding effect of the decision
by resorting to its legislative power. The judgments,
decrees and orders of any court or the competent authority
which had become final against the State were sought to be
done away with by enacting the impugned provisions of sub-
section (2) of Section 11. Such an attempt cannot be said to
be a permissible legislative exercise. Section 11(2),
therefore, must be held to be an attempt on the part of the
State Legislature to legislatively over-rule binding
decisions of competent courts against the State. It is no
doubt true that if any decision was rendered against the
State of Karnataka which was pending in appeal and had not
become final it could rely upon the relevant provisions of
the Act which were given retrospective effect by sub-section
(2) of Section 1 of the Act for whatever such reliance was
worth. But when such a decision had become final as in the
present case when the High Court clearly directed
respondent-State to give to the concerned petitioners deemed
dates of promotions if they were otherwise found fit and in
that eventuality to give all benefits consequential thereon
including financial benefits, the State could not invoke its
legislative power to displace such a judgment. Once this
decision had become final and the State of Karnataka had not
thought it fit to challenge it before this Court presumably
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because in identical other matters this Court had upheld
other decisions of the Karnataka High Court taking the same
view, it passes one’s comprehension how the legislative
power can be pressed in service to undo the binding effects
of such mandamus. It is also pertinent to note that not only
sub-section (2) of Section 11 seeks to bypass and over-ride
the binding effect of the judgments but also seeks to
empower the State to review such judgments and orders and
pass fresh orders in accordance with provisions of the
impugned Act. The respondent-State in the present case by
enacting sub-section (2) of Section 11 of the impugned Act
has clearly sought to nullify or abrogate the binding
decision of the High Court and has encroached upon the
judicial power entrusted to the various authorities
functioning under the relevant statutes and the
Constitution. Such an exercise of legislative power cannot
be countenanced.
It was contended by Shri Madhava Reddy that even
assuming that the Division Bench judgment remained binding
on the State despite the provisions of the impugned Act, all
that the Division Bench has directed the State is to
consider the case of the petitioners for deemed promotions
on the basis of the final seniority list. That has already
been done and the petitioners have no grievance for the
same. So far as the consequential financial benefits are
concerned they would not cover the monetary benefits flowing
from such deemed promotions. Even this submission cannot be
countenanced. We have already extracted earlier the
operative portion of the judgment of the Division Bench. It
has been in terms directed that if petitioner is found fit
and promoted he may be given all the benefits consequential
thereto including the financial benefits. It is, therefore,
obvious that once the deemed date of promotion is given to
the concerned petitioners it cannot be merely notional
promotion re-fixing his pay in the promotional cadre with
increments etc. but also would bring in its wake all
consequential financial benefits, namely, the salaries that
have accrued to them on account of such deemed promotions.
Whether such deemed promotions can also entail actual
monetary benefits when the concerned employees had not
worked on the promotional posts, is a question which could
have been agitated by the respondent-State, if so advised,
by challenging the order of the Division Bench before this
Court. That was not done. Instead it resorted to its
legislative power for undoing the said directions of the
Division Bench by arming itself with the power to review
that judgment by resort to its legislative function. That
was clearly not permissible as it was an act of encroachment
on the judicial pronouncement of the High Court which had
remained binding on the respondent-State. The ratio of the
decisions of this Court as discussed earlier clearly get
attracted on the facts of the present case and on the same
grounds on which this Court invalidated the relevant
provisions of Arbitration (Orissa Second Amendment) Act,
1991 in G.C. Kanungo (supra). Section 11 sub-section (2) of
the impugned Act also has to be declared ultra vires and
invalid.
We, therefore, strike down Section 11 sub-section (2)
as unconstitutional, illegal and void. So far as the
underlined impugned portions of Section 4 sub-sections (2),
(3) and (8) are concerned, they clearly conflict with the
binding direction issued by the Division Bench of the High
Court against the respondent-State and in favour of the
petitioners. Once respondent-State had suffered the mandamus
to give consequential financial benefits to the allottees
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like the petitioners on the basis of the deemed promotions
such binding direction about payment of consequential
monetary benefits cannot be nullified by the impugned
provisions of Section 4. Therefore, the underlined portions
of sub-sections (2), (3) and (8) of Section 4 will have to
be read down in the light of orders of the court which have
become final against the respondent-State and in so far as
these provisions are inconsistent with these final orders
containing such directions of judicial authorities and
competent courts, these impugned provisions of Section 4
have to give way and to the extent of such inconsistency
must be treated to be inoperative and ineffective.
Accordingly the aforesaid provisions are read down by
observing that the statutory provisions contained in sub-
sections (2), (3) and (8) of Section 4 providing that such
persons who have been given deemed promotions shall not be
entitled to any arrears for the period prior to the date of
their actual promotion, shall not apply in cases where
directions to the contrary of competent courts against the
respondent-State have become final.
In the result, this writ petition succeeds. Section 11
sub-section (2) is struck down as ultra vires the
legislative powers of the State. Sub-sections (2), (3) and
(8) of Section 4 are read down as aforesaid. The respondent-
State shall comply with the directions contained in the
binding decision of the High Court of Karnataka dated
21.9.1971 in Writ Petition Nos. 2598, 3302-3304 and 4586 of
1970 and shall make available all consequential financial
benefits to the concerned petitioners as directed by the
High Court within a period of eight weeks from the receipt
of the orders of this Court at its end. Rule issued in the
Writ Petition is accordingly made absolute with costs.