Full Judgment Text
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PETITIONER:
EX. CAPT. K.C. ARORA AND ANOTHER
Vs.
RESPONDENT:
STATE OF HARYANA AND OTHERS
DATE OF JUDGMENT26/04/1984
BENCH:
MISRA, R.B. (J)
BENCH:
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 youngmen 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
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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 1,1966 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 upto 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
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/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
JUDGMENT:
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
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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
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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
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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
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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
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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 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 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
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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
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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,
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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
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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
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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
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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
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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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