Full Judgment Text
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PETITIONER:
T.R. KAPUR & ORS.
Vs.
RESPONDENT:
STATE OF HARYANA & ORS.
DATE OF JUDGMENT17/12/1986
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
NATRAJAN, S. (J)
CITATION:
1987 AIR 415 1987 SCR (1) 584
1986 SCC Supl. 584 JT 1986 1092
1986 SCALE (2)1051
CITATOR INFO :
F 1987 SC 424 (11)
RF 1987 SC1676 (17)
R 1988 SC1645 (6)
RF 1989 SC 307 (5)
D 1990 SC1072 (5)
ACT:
Punjab Service of Engineers, Class I, Public Works
Department (Irrigation Branch) Rules, 1964: Rule
6(b)--Haryana State amendment with retrospective effect
declared ultra vires.
Punjab Reorganisation Act, 1966: s.82(6),
proviso--Service conditions of persons serving in composite
State of punjab--Alteration of--Approval of Central Govern-
ment mandatory.
Civil Services.
Benefits acquired under existing service rules cannot be
taken away by amendment of rules with retrospective effect.
Constitution of India, Article 309, proviso-Service
Rules-Amendment of with retrospective effect--Must satisfy
tests of Articles 14 and 16(1).
HEADNOTE:
The proviso to sub-s.(6) of s.82 of the Punjab Reorgani-
sation Act, 1966 mandates that the conditions of service
applicable to any person referred to in sub-s.(1) or sub-
s.(2) shall not be varied to his disadvantage except with
the previous approval of the Central Government. Rule 6(b)
of the Punjab Service of Engineers, Class I, Public Works
Department (Irrigation Branch) Rules, 1964, as it stood at
the relevant time, provided that in case of appointment by
promotion from Class II Service no person shall be appointed
unless he has completed in that Class of Service for a
period of ten years from the commencement of these ,Rules,
six years service and after that period eight years service.
The Governor of Haryana by a notification dated 22nd June,
1984 amended the above Rules by inserting the words ’in
addition to the qualifications prescribed in clause (a)’
after the words "eight years service" in cl(b) of r.6 with
retrospective effect from July 10, 1964 thereby making a
degree in Engineering essential for promotion to the post of
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Executive Engineer in Class I service.
Rule 3(c) of the Punjab Service of Engineers, Class II
P.W.D.
585
(Irrigation Branch) Rules, 1941 had enjoined that no person
shall be appointed to the service unless he possessed one of
the University degrees or other qualifications prescribed.
The proviso to r.5 however, laid down that that rule may be
relaxed by Government on the recommendations of the Chief
Engineers in order to admit the promotion of a member of the
Overseers Engineering Service of outstanding merit who may
not possess the qualifications specified in rule 3.
The petitioners, who are Engineering Diploma holders,
were appointed to Class 11I Overseers Engineering Service
(Irrigation Branch) in the erstwhile State of Punjab in the
year 1953, 1949 and 1952 respectively. In due course they
were promoted as Sub-Divisional Officers in Class II service
and were eligible for promotion to the post of Executive
Engineer in Class I service under the unamended rule 6(b)
having more than eight years’ service in Class II service.
In A.S. Parmar v. State of Haryana, [1984] 2 SCR 476 this
Court interpreting the unamended rule 6(b) had held that a
degree in Engineering was not an essential qualification for
promotion of Class II Officers to the cadre of Executive
Engineer in Class I service. But just before they were about
to be promoted the State of Haryana issued the impugned
notification rendering them inelligible.
Aggrieved by the said notification they filed these writ
petitions under Art.32 of the Constitution. It was contended
for them that the impugned notification purporting to amend
r.6(b) of Class I Rules with retrospective effect was ultra
vires the State Government being contrary to the proviso to
s.82(6) of the Punjab Reorganisation Act, 1966, that the
unamended r.6(b) had conferred a vested right of promotion
on them which could not be taken away by retrospective
amendment under the proviso to Art. 309 of the Constitution,
that a retrospective amendment taking away eligibility for
promotion from a back date ranging over 20 years and thereby
rendering invalid the promotions already made was constitu-
tionally impermissible, and that the action of the Govern-
ment in making such retrospective amendment to nullify the
decision in Parmar’s case was wholly arbitrary, irrational
and mala fide and thus violative of Arts. 14 and 16(1) of
the Constitution.
For the respondents it was contended that the proviso to
s. 82(6) was not attracted to the facts of the case since on
the appointed day, that is, November 1, 1966 the petitioners
were not members of Class II Service. They were then Super-
visors belonging to Class 111 Service, and, therefore, were
not governed by the unamended r.6(b). It was further con-
tended that under r.3(c) of the Punjab Service of Engineers,
Class II
586
P.W.D. (Irrigation Branch) Rules, 1941 a degree in Engineer-
ing was essential till the 1970 Rules brought about a
change. Inasmuch as none of the petitioners had the requi-
site qualifications, they could not become members of Class
II Service. It wag strenuously contended that the decision
in A.S. Parmar v. State of Haryana was incorrect.
Allowing the writ petitions, the Court,
HELD: 1.1 The impugned notification dated June 22, 1984
issued by the State Government of Haryana purporting to
amend r.6(b) of the Punjab Service of Engineers, Class I,
Public Works Department (Irrigation Branch) Rules 1964, with
retrospective effect from July 10, 1964 is declared ultra
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vires the State Government being contrary to s.82(6) of the
Punjab Reorganisation Act, 1966. [602EF, S97CD]
1.2 The proviso to s.82(6) of the Punjab Reorganisation
Act is in the nature of a fetter on the power of the Gover-
nor under the proviso to Art. 309 of the Constitution not to
alter the conditions of service applicable to members of
civil services affected by the reorganisation of the State
to their disadvantage without the previous approval of the
Central Government. [593E, 597B]
In the Instant case, the State Government never moved
the Central Government seeking its prior approval to the
proposed amendment of r.6(b) of the said Class I Rules.
There was no Chief Secretaries Conference as was held prior
to the reorganisation of the States under the States Reor-
ganisation Act, 1956. Nor was there any communication issued
by the Central Government conveying its previous approval of
the changes in the service conditions which the States of
Punjab and Haryana might make in terms of the proviso to
s.82(6) of the Punjab Reorganisation Act, 1966. The amend-
ment, therefore, must be struck down. [596E,G, 597C]
Mohammad Bhakar v.Y. Krishan Reddy, [1970] SLR 768;
Mohammdd Shujat Ali & Ors. v. Union of India & Ors., [1975]
1 SCR 449 and A.S. Parmar v. State of Haryana, [1984] 2 SCR
476, referred to.
2. I The decision in Parmar’s case is not open to ques-
tion. What was of the essence for purposes of promotion of
Sub-Divisional Officers who were members of Class II Service
to the post of Executive Engineer under r.6(b) of the Class
I Rules was not a degree in Engineering, but eight years’
experience in Class II Service. [597G, 598CD]
587
2.2 The petitioners like other members of Class II
Service who are diploma-holders and satisfy the eligibility
test of eight years’ service in that Class were, therefore,
eligible for being considered for promotion to the post of
Executive Engineer in Class I service without having a
degree in Engineering. [594B]
A.S. Parmar v. State of Haryana, [1984] 2 SCR 476, referred
to.
3. The requirement of a degree in Engineering which was
an essential educational qualification for purposes of
direct recruitment of Assistant Executive Engineers in Class
I Service under r.6(a) of the Class I Rules could not be
projected for promotion of Sub,Divisional Officers belonging
to Class II Service to the posts of Executive Engineers in
Class I. Service under r.6(b) as they form two distinct
sources from which appointments to the posts of Executive
Engineers could be made. [598B]
4. The proviso to r.5 of the 1941 Rules conferred power
on the State Government to relax the requirement of r.3(c)
on the recommendation of the Chief Engineer in order to
admit the promotion of a member of the Overseen Engineering
Service (Irrigation Branch), Punjab if he was an officer of
outstanding merit although he did not possess the qualifica-
tion prescribed in r.3(c), i.e. a degree in Engineering.
Presumably, the petitioners were officers off outstanding
merit as they were promoted as Offg. Sub,Divisional Officers
in Class II Service in January 1964, July 1966 and November
1969. [597H--598A, 596A]
5. It cannot be said that on the appointed day i.e. on
November, 1, 1966 the petitioners were Overseers belonging
to the Class III Service and were therefore not governed by
unamended r.6(b). Two of them had already been promoted as
(Mfg. SUb,Divisional Officers prior to the appointed day,
i.e. in January 1964 and July 1966 and were, therefore,
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governed by the unamended r.6(b). The third petitioner was
also promoted to that post subsequently in November 1969.
Upon such promotion to the post of Offg. Sub-Divisional
Officers they had not only the legitimate expectation that
they would in due course be considered for confirmation but
also had the right on such confirmation to be considered for
promotion. It is also not quite accurate to say that the
petitioners were not shown as belonging to the Class 11
Service. A bare look at the notification dated October 27,
1985 would show that the petitioners figure at Sr. Nos. 246,
254 and 369. [596B-D]
6. The power to frame rules to regulate the conditions of
service
588
under the proviso to Art. 309 of the Constitution carries
with it the power to amend or alter the rules with a retro-
spective effect. This rule is, however, subject to a well-
recognised principle that the benefits acquired under the
existing rules cannot be taken away by an amendment with
retrospective effect. Therefore, unless it is specifically
provided in the rules, the employees who were already pro-
moted before the amendment of the rules, cannot be reverted
and their promotions cannot be recalled. In other words,
such rules laying down qualifications for promotion made
with retrospective effect must necessarily satisfy the tests
of Arts. 14 and 16(1) of the Constitution. They do not, in
the instant case. [599B-F]
B.S. Vadhera v. Union of India, [1968] 3 SCR 575, Raj
Kumar v. Union of India, [1975] 3 SCR 963; K. Nagaraj & Ors.
v. State of A.P. & Anr., [1985] 1 SCC 523; State of J & K v.
Triloki Nath Khosla & Ors., [1974] 1 SCR 771; State of
Mysore v.M.N. Krishna Murtv & Ors., [1973] 2 SCR 575; B.S.
Yadav & Ors., v. State of liaryana & Ors., [1981] 1 SCR
1024; State of Gujarat & Anr. v. Ramanlal Keshavlal Soni &
Ors., [1983] 2 SCR 287 and Ex-Captain K.C. Arora & Anr. v.
State of Haryana & Ors., [1984] 3 SCR 623, referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 630-32 of 1984
Under Article a2 of the Constitution of India.
M.K. Ramamurthy, Shanti Bhushan, U.R. Lalit, M.R. Shar-
ma, S.K. Mehta, B.R. Agarwala, N.D. Garg, E.M.S. Anam, P.D.
Sharma, C.V. Subba Rao, I.S. Goel, Dr. K.S. Tiwari, P.H.
Parekh, Sohail Dutt, Uma Datta and V.P. Goel for the appear-
ing parties.
The Judgment of the Court was delivered by
SEN, J. These petitions upder Art. 32 of the Constitu-
tion assail the constitutional validity of a notification
issued by the State Government of Haryana in the Public
Works Department (Irrigation Branch) dated June 22, 1984
purporting to amend r.6(b) of the Punjab Service of Engi-
neers, Class I, PUblic Works Department (Irrigation Branch)
Rules, 1964 (for short ’the Class I Rules’) with retrospec-
tive effect from July 10, 1964 as violative of Arts. 14 and
16(1) of the Constitution and also ultra vires the State
Government by reason of the proviso to s.82(6) of the Punjab
Reorganisation Act, 1966. The purport and effect of the
impugned notification is to nullify the decision of this
Court in A.S. Parmar v. State of Haryana, [1984] 2 SCR 476,
holding
589
that a degree in Engineering was not essential for such
promotion. By the impugned notification, a degree in Engi-
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neering is made an essential qualification for promotion of
Assistant Engineers in the Irrigation Branch, a Class II
service under r.6(b) of the Class I Rules and thereby the
petitioners have been rendered ineligible for promotion to
the post of Executive Engineer in Class I service.
The circumstances which led to the issuance of the
impugned notification are these. A controversy had arisen on
the construction of r.6 of the Class I Rules as to whether a
degree in Engineering was necessary when the post of Execu-
tive Engineer, which is a post in Class I service, was to be
filled by promotion by members of Class II service and this
was settled by the decision of this Court in A.S. Parmar’s
case, supra. The Court on a consideration of the relevant
rules came to the conclusion that a member of Class II
service, namely, Assistant Engineer or Sub-Divisional Offi-
cer did not require to have a University degree for promo-
tion to the post of Executive Engineer in Class I service.
On February 24, 1984, the Additional Solicitor General gave
an undertaking on behalf of the State Government that it
would consider the cases of all eligible persons including
the petitioners for regular appointment to the Class I
service in accordance with the rules and complete the proc-
ess within four months from that day. The Court, according-
ly, in Civil Appeal No. 149 of 1981 (Ashok Gulati & Ors. v.
State of Haryana) and the connected matters as also in these
petitions under Art. 32 of the Constitution passed an order
to the effect:
"Mr. K.G. Bhagat, learned Additional Solicitor
General says that the State Government will
consider the cases of all the eligible persons
including the appellants/petitioners and
respondents for regular appointments to Class
I Service in accordance with the law and
complete the process of appointments within 4
months from today. The Government is permitted
to do so. But all appointments made pursuant
to this order will be subject to the final
result of these cases.
In the meanwhile the appellants will
continue in the posts held by them.
These matters will stand adjourned
for a period of 6 months from today."
590
Just two days before the expiry of the period within which
promotion of eligible persons including the petitioners was
to be completed, the State Government purported to effect an
amendment of r.6(b) retrospectively w.e.f. July 10, 1964.
The impugned notification was in these terms:
"HARYANA GOVERNMENT
PUBLIC WORKS DEPARTMENT (IRRIGATION)
NOTIFICATION
The 22nd June, 1984.
No. G.S.R. 47/Cons./Art. 309/Amend. (1)-84-
Inexercise of the powers conferred by the
proviso to Article 309 of the Constitution of
India and all other powers enabling him in
this behalf, the Governor of Haryana, hereby
makes the following rules further to amend the
Punjab Service of Engineers, Class I, P.W.D.
(Irrigation Branch) Rules, 1964, namely:-
1. (1) These rules may be called the
Punjab Service of Engineers, Class I, P.W.D.
(Irrigation Branch), Haryana, (Second Amend-
ment) Rules, 1984.
(2) ’These rules shall be deemed to
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have come into force with effect from the 10th
July, 1964.
2. In the Punjab Service of Engineers, Class
I, P.W.D. (Irrigation Branch) Rules, 1964, in
rule 6, in clause (b), after the words "eight
years service", the words, "in addition to the
qualifications prescribed in clause (a)" shall
be inserted."
Presumably, the State Government adopted this unfortu-
nate course of action taking cue of the observations made by
this Court in the concluding part of the judgment in A.S.
Parmar’s case saying that if the Government wish to appoint
only persons having a degree in Engineering to Class I
service, it was free to do so by promulgating appropriate
rules and that the power to frame such a rule was beyond
question. But the Court never laid down that such a rule may
be framed under Art. 309 of the Constitution with retrospec-
tive effect so as to render ineligible Class II officers
like the petitioners who were Diploma-holders for further
promotion as Executive Engineers in Class I service. In view
of the clear formulation of law interpreting
591
r.6(b) of the Class I Rules holding that a degree in Engi-
neering was not an essential qualification for promotion of
Class II Officers to the cadre of Executive Engineers in
Class I service, there was no occasion for the State Govern-
ment to issue the impugned notification unless it was with
the object of nullifying the decision of this Court in A.S.
Parmar’s case.
In order to appreciate the points involved, it is neces-
sary to state a few facts. The three petitioners T.R. Kapur,
Mohinder Singh and V.D. Grover who are Diploma-holders hold
the posts of Sub Divisional Officers, Public Works Depart-
ment (Irrigation Branch), Haryana, a Class II service,
governed by the Haryana Service of Engineers, Class II
P.W.D. (Irrigation Branch) Rules, 1970. They joined Class
III service as Overseers in the Irrigation Branch on Septem-
ber, 18, 1953, October 6, 1949 and November 8, 1952 respec-
tively in the erstwhile State of Punjab. At the time when
they were appointed to the Overseers Engineering Service,
Punjab, r.3(c) of the Punjab Service of Engineers, Class II
P.W.D. (Irrigation Branch) Rules, 1941 enjoined that no
person shall be appointed to the service unless he possessed
one of the University degrees or other qualifications pre-
scribed in Appendix ’A’ to the Rules. Note beneath cl.(c),
however, provided that the requirements of cl.(c) could be
waived in the case of members of the Overseers Engineering
Service (Irrigation Branch) Punjab to be promoted in the
service under the proviso to r.5 of the Rules. The term
’service’ was defined in r. 1(2)(g) to mean the Punjab
Service of Engineers, Class II (Irrigation Branch), Proviso
to r.5 of Part II--Appointments Rules, reads as follows:
"Provided that this rule may be relaxed by
Government on the recommendations of the Chief
Engineers in order to admit the promotion of a
member of an Overseer Engineering Service
(Irrigation Branch), Punjab of outstanding
merit who may not possess the qualifications
specified in
In due course, the petitioners were promoted as Offg. Sub-
Divisional Officers in the Class II service in November
1969, July 1966 and January 1964 respectively. Subsequent-
ly, by notification dated October 27, 1985, the petitioners
were appointed as Sub-Divisional Officers on a regular basis
w.e.f. December 25, 1970. Under the unamended r.6(b) of the
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Class I Rules, the petitioners were eligible for promotion
as Executive Engineers in Class I service despite the fact
that they did not possess a degree in Engineering. Rule 6 of
Class I
592
Rules insofar as relevant may be reproduced:
"6. Qualifications: No person shall be ap-
pointed to the service unless he--
(a) possesses one of the University Degrees or
other qualifications prescribed in Appendix B
of these rules;
Provided that Government may waive
this qualification in the case of a particular
officer belonging to the Class II Service.
(b) In case of appointment by promotion from
Class II Service, has completed in that Class
of Service for a period of ten years from the
commencement of these rules, six years service
and after that period eight years service."
Shri Shanti Bhushan, learned counsel for the petitioners
has put forward a three-fold contention. First of these
submissions is that the impugned notification which purport-
ed to amend r.6(b) of the Class I Rules with retrospective
effect from July 10, 1964 making a degree in Engineering
essential for promotion to the post of Executive Engineer in
Class I service constitutes a variation in the conditions of
service applicable to officers belonging to Class II service
who are diplomaholders like the petitioners prior to the
appointed day i.e. November 1, 1966 to their disadvantage as
it renders them ineligible for promotion to the post of
Executive Engineer in Class I service and was ultra vires
the State Government having been made without the previous
approval of the Central Government as enjoined by the provi-
so to s.82(6),of the Punjab Reorganisation Act, 1966. It is
urged that any rule which affects the promotion of a person
relates to his conditions of service, although mere chances
of promotion may not be. The contention, in our opinion,
must prevail. The second is that it was not permissible for
the State Government to amend r.6(b) of the Class I Rules
with retrospective effect under the proviso to Art. 309 of
the Constitution so as to render ineligible for promotion to
the post of Executive Engineer in Class I service, the
members of Class II service who are diploma-holders although
they satisfy the condition of eligibility of eight years’
experience in that class of service. It is said that the
unamended r.6(b) conferred a vested right on persons like
the petitioners which could not be taken away by retrospec-
tive amendment of r.6(b). The third and the last submission
is that the action of the State Government in issuing the
impugned notification making retrospective
593
amendment of r.6(b) of the Class I Rules was wholly arbi-
trary, irrational and mala fide and thus violative of Arts.
14 and 16(1) of the Constitution. It is submitted that the
impugned notification was calculated to circumvent the
direction given by this Court in its order dated February
24, 1984 on the basis of the undertaking given by the
learned Additional Solicitor General that the State Govern-
ment would consider the cases of all eligible officers
belonging to Class II service for promotion to the Class I
service.
Sub-s.(6) of s.82 of the Punjab Reorganisation Act, 1966
provides:
"82(6). Nothing in this section shall be
deemed to affect on or after the appointed day
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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 re-
ferred 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."
It is quite clear that the proviso to s. 82(6) of the
Punjab Reorganisation Act, 1966 is in the nature of a fetter
on the power of the Governor under the proviso to Art. 309
of the Constitution to alter the conditions of service
applicable to all persons serving in connection with the
affairs of the State. It interdicts that the conditions of
service applicable to persons referred to in sub-s. (1) or
sub-s. (2) thereof i.e. members of civil services affected
by the reorganisation of the State. The conditions of serv-
ice of any persons who immediately before the appointed day
were serving in connection with the affairs of the existing
State of Punjab and are as from that date allocated for
service in connection with the affairs of the successor
State i.e. allocated Government servants can not be varied
to their disadvantage.
There is a long fine of decisions starting from Mohammad
Bhakar v.Y. Krishan Reddy, [1970] SLR 768 down to Mohammed
Shujat Ali & Ors. v. Union of India & Ors., [1975] 1 SCR 449
while construing the analogous provision contained in the
proviso to s. 115(7) of the States Reorganisation Act, 1956
laying down that any rule made
594
under the proviso to Art. 309 of the Constitution which
seeks to vary or alter the conditions of service without the
previous approval of the Central Government would be void
and inoperative being in violation of the proviso to sub-s.
(7) of s. 115 of the Act., It is a trite proposition that
any rule which affects the right of a person to be consid-
ered for promotion is a condition of service, although mere
chances of promotion may not be. As laid down by this Court
in A.S. Parmar’s case, the petitioners like other members of
Class II service who are diploma holders and satisfy the
eligibility test of eight years’ service in that class, were
eligible for being considered for promotion to the post of
Executive Engineer in Class I service without having a
degree in Engineering. Admittedly, the impugned notification
which seeks to amend r.6(b) with retrospective effect from
July 10, 1964 clearly operates to their disadvantage as its
purports to make them ineligible for promotion being diplo-
ma-holders.
In Mohammad Bhakar’s case, the Court speaking through
Mitter, J. said: "A rule which affects the promotion of a
person relates to his conditions of service". It was held
that a rule which made the passing of certain departmental
examinations a pre-requisite for promotion having been made
without the previous approval of the Central Government was
void by reason of sub-s. (7) of s. 115. In Mohammad Shujat
Ali’s case, a Constitution Bench of this Court speaking
through Bhagwati, J. observed:
"A rule which confers a right of actual
promotion or a right to be considered for
promotion is a rule prescribing a condition of
service."
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Under the Class I Rules as they existed immediately prior to
the appointed day i.e. before November 1, 1966, a member of
the Overseers Engineering Service in the Irrigation Branch,
Punjab having a diploma was eligible for being promoted as
Sub-Divisional Officer in the Class II Service and then in
due course to the post of Executive Engineer in the Class I
service within the quota prescribed for them without having
a degree in Engineering. It was not necessary to possess a
degree in Engineering as held by this Court in A.S. Parmar’s
case for purposes of promotion under the unamended r.6(b) of
the Class I Rules, as in the case of promotion to the post
of Executive Engineer in Class I service under r.6(b) what
was essential was eight years’ service in that class and not
a degree in Engineering. The impugned notification which
purports to amend r.6(b) with retrospective effect, however,
renders members of the Class II service like the
595
petitioners who are diploma-holders ineligible for promotion
by making a degree in Engineering an essential qualification
for such promotion which amounts to alteration of the condi-
tions of service applicable to them to their disadvantage
without the previous approval of the Central Government and
is thus void by reason of the proviso to sub-s.(6) of s.82
of the Punjab Reorganisation Act, 1966.
Faced with the difficulty, learned counsel for the
respondents strenuously contends that the proviso to s.82(6)
of the Act is not attracted in the present case. It is
argued that on the appointed day i.e. November 1, 1966 the
petitioners were not members of Class II service. It is said
that the petitioners on the appointed day being Supervisors
belonged to the Class III service and therefore were not
governed by the unamended r.6(b). Reliance is placed on the
notification issued by the State Government dated October
27, 1985 constituting the Class II service w.e.f. December
25, 1970 and it is said that the petitioners are not shown
as belonging to Class II service. It was then contended that
under r.3(c) of the Punjab Service of Engineers, Class II
P.W.D. (Irrigation Branch) Rules, 1941, a degree in Engi-
neering was essential till the Punjab Service of Engineers,
Class II, P.W..D. (Irrigation Branch) Rules, 1970 brought
about a change. Inasmuch as none of the petitioners had the
requisite qualifications, they could not become members of
the Class II service. We are unable to accept this line of
reasoning.
Undoubtedly, at the time when the petitioners were
recruited as Supervisors in the Irrigation Branch, a Class
III service, r.3(c) of the Punjab Service of Engineers,
Class II, P.W.D. (Irrigation Branch) Rules, 1941 laid down
that no person shall be appointed to the service unless he
possessed one of the university degrees or other qualifica-
tions prescribed in Appendix ’A’ to the Rules. Note beneath
r.3(c) however provided that the requirements of cl. (c)
could be waived in the case of members of the Overseers
Engineering Service, Irrigation Branch, Punjab for promotion
to the service under the proviso to r.5 of the Rules. The
term ’service’ as defined in r. 1(2)(g) meant the Punjab
Service of Engineers, Class II (Irrigation Branch). Proviso
to r.5 of the Rules, however, empowered the State Government
to relax the condition. It is clear from the terms of the
proviso to r.5 quoted above that the State Government could
relax the requirements of r.3(c) on the recommendation of
the Chief Engineer in order to admit the promotion of a
member of the Overseers Engineering Service, Irrigation
Branch, Punjab if he was an officer of outstanding merit
although he did not possess the qualifications specified in
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r.3(c) i.e. a
596
degree in Engineering. Presumably, the petitioners were
officers of outstanding merit and they were promoted as
Offg. Sub-Divisional Officers in Class II service in January
1964, July 1966 and November 1969. Eventually, the State
Government by notification dated October 27, 1985 appointed
them on a regular basis in that post, w.e.f. December 25,
1970. ’Further, it is wrong to suggest that on the appointed
day i.e. on November 1, 1966 they were all Overseers belong-
ing to the Class III service and were therefore not governed
by the unamended r 6(b). Two of them V.D. Grover and Mohin-
der Singh had already been’ promoted as Offg. Sub-Divisional
Officers prior to the appointed day i.e. in January 1964 and
July 1966 and were therefore governed by the unamended
r.6(b) of the Class I Rules and the third petitioner T.R.
Kapur was also promoted to that post. subsequently in Novem-
ber 1969. Upon such promotion to the post of Offg. Sub-
Divisional Officers they had not only the legitimate expec-
tation that they would in due course be considered for
confirmation but also had the right on such confirmation to
be considered for promotion. It is also not quite accurate
to say that the petitioners were not shown as belonging to
the Class II service. A bare look at the notification dated
October 27, 1985 would show that the petitioners figure at
Sr. Nos. 246, 254 and 369.
It is not suggested that the State Government ever moved
the Central Government seeking its prior approval to the
proposed amendment of r.6(b) of the Class I Rules. In that
connection, it is necessary to recall that prior to the
reorganisation of the States under the States Reorganisation
Act, 1956, a conference of the Chief Secretaries of the
States that were to be affected was held at Delhi on May 18
and 19, 1956 for the purpose of formulation of the princi-
ples upon which integration of services was to be effected.
The Government of India by its circular dated May 11, 1957
to all the State Governments stated inter alia that it
agreed with the views expressed on behalf of the States’
representatives that it would not be appropriate to provide
any protection in the matter of departmental promotion. This
circular has been interpreted as a prior approval of the
Central Government in terms of the proviso to sub-s.(7) of
s. 115 of the Act in the matter of change of the conditions
of service relating to departmental promotions. These con-
siderations however do not arise in the present case. Admit-
tedly, there was no Chief Secretaries Conference as was held
prior to the reorganisation of the States under the States
Reorganisation Act, 1956. Nor Was there any communication
issued by the Central Government conveying its previous
approval of the changes in service conditions which the
States of Punjab and Haryana might
597
make in terms of the proviso to s.82(6) of the Punjab Reor-
ganisation Act, 1966. Under the States Reorganisation Act,
1956 so also under the Punjab Reorganisation Act, 1966, the
power of the Governor to make rules under the proviso to
Art.309 of the Constitution had been controlled by the
proviso to s. 115(7) of the former Act and s.82(6) of the
latter. It follows that the conditions of service applicable
immediately before the appointed day to the case of any
person referred to in sub-s.(1) or (2) of s.82 of the Act
could not be varied to his disadvantage except with the
previous approval of the Central Government. That being so,
the impugned notification issued by the State Government
purporting to amend r.6(b) of the Class I Rules w.e.f. July
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10, 1964 which rendered members of Class II Service who are
diploma-holders like the petitioners ineligible for promo-
tion to the post of Executive Engineer in Class I Service
making a degree in Engineering essential for such promotion,
although they satisfied the condition of eligibility of 8
years’ experience in that class of service, must be struck
down as ultra vires the State Government being contrary to
s.82(6) of the Punjab Reorganisation Act, 1966. ’
On the view that we take, there is no need for us to
deal in detail with the other points raised. We shall only
touch upon them.
One should have thought that the controversy whether a
degree in Engineering was an essential qualification for
promotion of Sub Divisional Officers in Class II Service to
the post of Executive E-ngineer in Class I Service under r.
6(b) of the Class I Rules had ended with the decision of
this Court in A.S. Parmar’s case. Curiously enough, learned
counsel for the respondents strenuously contends that the
decision of this Court in A.S. Parmar’s case was incorrect.
He presses into service for our acceptance the decision of
the High Court in o.P. Bhatia v. State of Punjab, ILR 1980 P
& H 470 taking a view to the contrary. It is urged that in
the erstwhile State of Punjab a degree in Engineering was
essential for recruitment of Assistant Engineers in Class II
Service under r. 3(c) of the 1941 Rules as held by the High
Court in O.P. Bhatia’s case and that view was in consonance
with the departmental instructions of the relevant rules in
the State of Punjab and the State of Haryana as also in the
erstwhile State of Punjab that r.6(b) required the promotees
to have the essential qualification of a degree in Engineer-
ing. We do not think that it is open to question the cor-
rectness of the decision in A.S. Parmar’s case which ex-
pressly overrules the view taken by the High Court in O.P.
Bhatia’s case. That apart, the proviso to r.5 of the 1941
Rules conferred power on the State Government to relax the
requirement of r.3(c) on the recom-
598
mendation of the Chief Engineer in order to admit the promo-
tion of a member of the Overseers Engineering Service
(Irrigation Branch), Punjab if he was an officer of out-
standing merit although he did not possess the qualification
prescribed in r.3(c) i.e. the educational qualification of a
degree in Engineering. The requirement of a degree in Engi-
neering for recruitment to the Class II Service was done
away with in the 1970 Rules. The contention also fails to
take note of the fact that the requirement of a degree in
Engineering which was an essential educational qualification
for purposes of direct recruitment of Assistant Executive
Engineers in Class I Service under r. 6(a) of the Class I
Rules could not be projected for promotion of Sub-Divisional
Officers belonging to Class II Service to the posts of
Executive Engineers in Class I Service under r. 6(b) as they
form two distinct sources from which the appointments to the
posts of Executive Engineers could be made. As laid down in
A.S. Parmar’s case, what was of the essence for purposes of
promotion of Sub-Divisional Officers who were members of
Class II Service to the post of Executive Engineer under r.6
(b) of the Class I Rules was not a degree in Engineering,
but 8 years’ experience in that class of service i.e. Class
II Service.
More fundamental is the contention that the impugned
notification issued by the State Government purporting to
amend r.6(b) with retrospective effect from July 10, 1964
which rendered members of Class II Service who are diploma-
holders like the petitioners. ineligible for promotion to
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the post of Executive Engineer although they satisfied the
condition of eligibility of 8 years’ experience in that
class of service was unreasonable, arbitrary and irrational
and thus offended against Arts. 14 and 16(1) of the Consti-
tution. It is urged that they were eligible for promotion
under the unamended r.6(b) of the Class I Rules and had a
fight to be considered for promotion to the post of Execu-
tive Engineer, and a retrospective amendment of r.6(b)
seeking to render them ineligible was constitutionally
impermissible. It is said that the reason for this was
obvious inasmuch as immediately prior to the reorganisation
of the State of Punjab i.e. prior to November 1, 1966 even a
member of the Overseers Engineering Service, a Class III
Service, having only a diploma was eligible for being pro-
moted as Executive Engineer in Class I Service in due course
since in the matter of promotion under the unamended r.6(b)
it was not necessary to possess a degree in Engineering as
held by this Court in A.S. Parmar’s case. It follows there-
fore that every member of the Overseers Engineering Service
was eligible for promotion first as Assistant Engineer or
Sub-Divisional Officer in Class II Service and thereafter,
599
in due course, to the post of Executive Engineer in Class I
Service even without the educational qualification of a
degree in Engineering. In substance, the submission is that
a retrospective amendment of r.6(b) by the impugned notifi-
cation which seeks to take away the eligibility of members
of Class II Service who are diploma-holders for purposes of
promotion to the posts of Executive Engineers in Class I
Service from a back date ranging over 20 years and thereby
renders invalid the promotions already made is constitution-
ally impermissible.
It is well-settled that the power to frame rules to
regulate the conditions of service under the proviso to Art.
309 of the Constitution carries with it the power to amend
or alter the rules with a retrospective effect: B.S. Vadhera
v. Union of India, [1968] 3 SCR 575, Raj Kumar v. Union of
India, [1975] 3 SCR 963, K. Nagaraj & Ors. v. Sate of A.P. &
Anr., [1985] 1 SCC 523 and State Of J & K v. Triloki Nath
Khosla & Ors., [1974] 1 SCR 771. It is equally well-settled
that any rule which affects the right of a person to be
considered for promotion is a condition of service although
mere chances of promotion may not be. It may further be
stated that an authority competent to lay down qualifica-
tions for promotion, is also competent to change the quali-
fications. The rules defining qualifications and suitability
for promotion are conditions of service and they can be
changed retrospectively. This rule is however subject to a
well-recognised principle that the benefits acquired under
the existing rules cannot be taken away by an amendment with
retrospective effect, that is to say, there is no power to
make such a rule under the proviso to Art. 309 which affects
or impairs vested rights. Therefore, unless it is specifi-
cally provided in the rules, the employees who are already
promoted before the amendment of the rules, cannot be re-
verted and their promotions cannot be recalled. In other
words, such rules laying down qualifications for promotion
made with retrospective effect must necessary satisfy the
tests of Arts. 14 and 16(1) of the Constitution: State of
Mysore v. M.N. Krishna Murty & Ors., [1973] 2 SCR 575 B.S.
Yadav & Ors. v. State of Haryana & Ors., [1981] 1 SCR 1024
State of Gujarat & Anr. v. Ramanlal Keshavlal Soni & Ors.,
[1983] 2 SCR 287 and Ex-Captain K.C. Arora & Anr. v. State
of Haryana & Ors., [1984] 3 SCR 623.
A Constitution Bench of this Court in State of Gujarat &
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Anr. v. Ramanlal Keshavlal Soni & Ors. (supra) had to con-
sider the constitutional validity of the proviso to s. 102
(1)(a) of the Gujarat Panchayat Act, 1961 as introduced by
the Gujarat Panchayat (Third Amendment) Act, 1978 with
retrospective effect and sought to extinguish the status of
secretaries, officers and servants of the Gram and Nagar
600
Panchayats who became members of a service under the State
on being allocated to the panchayat service. The Court
speaking through Chinnappa Reddy, J. observed:
"Now, in 1978 before the Amending Act was
passed, thanks to the provisions of the Prin-
cipal Act of 1961, the ex-municipal employees
who had been allocated to the Panchayat Serv-
ice as Secretaries, Officers 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 accord-
ance with the provisions of Art.311 of the
Constitution. Nor was it permissible to single
them out for differential treatment. That
would offend Art. 14 of the Constitution."
The learned Judge observed that the Amending Act was sought
to be given retrospective effect to get over the constitu-
tional safeguards of Arts. 311 and 14 by reverting to a
situation that existed some 17 years ago. He said that there
was no power to do so and observed:
"The legislation is pure and simple, self-
deceptive, if we may use such an expression
with reference to a legislaturemade law. The
legislature is undoubtedly competent to legis-
late with retrospective effect to take away or
impair any vested fight acquired under exist-
ing laws but since the laws are made under a
written Constitution, and have to conform to
the do’s and don’ts of the Constitution nei-
ther prospective nor retrospective laws can be
made so a 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, twenty years ago
the parties had no fights, therefore, the
requirements of the Constitution will be
satisfied if the law is dated back by twenty
years. We are concerned with today’s rights
and not yesterday’s. A legislature
cannot legislate today with reference to a
situation that obtained twenty years ago and
ignore the march of events and the constitu-
tional rights accrued in the course of the
twenty years. That would be most arbitrary,
unreasonable and a negation of history."
The learned Judge relied with approval on the following
observations
601
of Chandrachud, CJ. speaking for a Constitution Bench in
B.S. Yadav & Ors. v. State of Haryana & Ors. (supra):
"Since the Governor exercises the legislative
power under the proviso to Art. 309 of the
Constitution, it is open to him to give retro-
spective operation to the rules made under
that provision. But the date from which the
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rules are made to operate, must be shown to
bear either from the face of the rules or by
extrinsic evidence, reasonable nexus with the
provisions contained in the rules, especially
when the retrospective effect extends over a
long period as in this case. ’ ’
and summed up:
"Today’s equals cannot be made unequal by
saying that they were unequal twenty years ago
and we will restore that position by making a
law today and making it retrospective. Consti-
tutional rights, constitutional obligations
and constitutional consequences cannot be
tempered with that way. A law which if made
today would be plainly invalid as offending
constitutional provisions in the context of
the existing situation cannot become valid by
being made retrospective. Past virtue (consti-
tutional) 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
Arts. 311 and 14 and is arbitrary and unrea-
sonable."
Following the view the Court in K.C. Arora’s case re-
ferred with approval to the observations of the Punjab &
Haryana High Court in Harbhajan Singh v. State of Punjab,
[1977] 2 SCR 180 to the effect:
"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 candi-
dates who were eligible under the old rules
but became ineligible by reason of an amend-
ment of the rules made after the process of
selection had almost reached a final stage."
602
And then queried:
"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 at-
tributing such an unreasonable intention to
the rule-making authority. In our view, the
only reasonable interpretation of the amended
rule, consistent with the prevailing situa-
tion, 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 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 unreasona-
bleness to the rule-making authority. In that
view, the petitioner cannot be said to be
ineligible for appointment."
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The view expressed by the High Court has received the impri-
matur of the Court in K.C. Arora’s case. That appears to be
the present trend.
In the result, the petitions must succeed and are al-
lowed with costs. The impugned notification dated June 22,
1984 issued by the State Government of Haryana purporting to
amend r.6(b) of the Punjab Service of Engineers, Class I,
Public Works Department (Irrigation Branch) Rules, 1964 with
retrospective effect from July 10, 1964 is declared to be
ultra vires the State Government.
P.S.S. Petitions
allowed.
?603