Full Judgment Text
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PETITIONER:
RAVINDRANATH PAI & ANR
Vs.
RESPONDENT:
STATE OF KARNATAKA & ANR.
DATE OF JUDGMENT20/02/1995
BENCH:
MAJMUDAR S.B. (J)
BENCH:
MAJMUDAR S.B. (J)
KULDIP SINGH (J)
HANSARIA B.L. (J)
CITATION:
1995 AIR 1978 1995 SCC Supl. (2) 246
JT 1995 (2) 520 1995 SCALE (1)800
ACT:
HEADNOTE:
JUDGMENT:
1. These two civil appeals by special leave seek to
challenge a common order dated 30.1.1988 of the
Administrative Tribunal, Karnataka in Application Nos. 4814
and 4815 of 1986 moved by the present two appellants. The
Tribunal has dismissed these applications.
2. A few introductory facts to highlight the common
grievance of the appellants may be noted at the outset.
The appellants were initially diploma holders in
engineering. They were recruited as Supervisors in the
years 1960 and 1961 in the Public Works Department of
Karnataka State. Later, appellant no. 1 acquired degree in
civil engineering in 1967 and appellant no. 2 acquired
graduation in engineering in 1970. At the time of their re-
cruitment, relevant recruitment rules envisaged that only
degree holders were entitled to be appointed as Junior
Engineers, whereas diploma holders could be appointed as
Supervisors. In 1969 this position was changed and both the
cadres of Junior Engineers and Supervisors were merged into
one cadre of Junior Engineers. This was followed by an
order of the Karnataka State in 1971 extending identical pay
scales with retrospective effect from 1.1.1957 to both
graduate and diploma holder Junior Engineers. The Karnataka
State by another order dated 9.1.1974 sought to bifurcate
the service into two cadres, namely, Junior Engineer
(Division-1) and Junior Engineer (Division-II). The former
cadre was to comprise of degree holders and the later of
diploma holders. This bifurcation of cadres was sought to
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be given retrospective effect from 3.7.1969. This
retrospective bifurcation was sought to be supported by an
enactment called the Karnataka State Civil Services (Classi-
fication and Scale of Pay of Non-graduate Junior Engineers
of the Public Works Department) Act, 1975 being Act 9 of
1975. The Act provided for classification and scale of pay
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admissible to non-graduate Junior Engineers of the Public
Works Department of the State of Karnataka. By Section 2 of
the said Act, the posts of nongraduate Junior Engineers were
declared to have existed with retrospective effect from 1st
November, 1956. By sub-section 2(1)(ii) of the said Act it
was provided that the scales of pay admissible to such non-
graduate Junior Engineers were to be only those specified
for such category of posts and not those admissible to
category of Junior Engineer graduates. These scales were
also given retrospective effect from 1. 11. 1956.
3. The aforesaid bifurcation of cadres was brought in
challenge in Karnataka High Court by writ petition no. 3182
of 1973. During the pendency of the writ petition Karnataka
Act 9 of 1975 came into force. The High Court by its
decision dated 1.9.1981 took the, view that bifurcation of
the combined cadre of Junior Engineers which was holding the
field from 1969 to 1974 could be operative from 9.1.1974 for
the purpose of separate pay scales of graduate and non-
graduate Junior Engineers. In so far as the Act sought to
give retrospective effect to its operation for a period
prior to 9.1.1974, it was regarded as invalid. Accordingly,
a writ of mandamus was issued restraining the respondents
from recovering any part of the salary received by the non-
graduate Junior Engineers petitioners for any period prior
to 9.1.1974 and a further mandamus was issued to pay the
salary which accrued to them upto 9.1.1974, which had not
been paid. The writ petitions were accordingly partly
allowed.
4. It is thereafter that the appellants approached the
Karnataka High Court by filing writ petitions for issuance
of appropriate order against respondent authorities
directing them to treat the appellants as Junior Engineers
(Division-1) in the light of their existing qualification of
graduation. The said direction was sought for appellant no.
1 from 3.7.1969, on which date by Gazette notification a
combined cadre of Junior Engineers had come into operation,
while a similar direction was sought for appellant no. 2
from 1970, from the date on which he got graduation.
5. These writ petitions were transferred to the
Karnataka Administrative Tribunal which had got established
in the meantime. The Tribunal by its impugned common order
dismissed the writ petitions which were treated as
applications. The Tribunal took the view that decision of
the Karnataka High Court dated 1.9.1981, on which strong
reliance was placed by the appellants, was with reference to
the retrospective revision of pay scales only, that the
Division Bench of the High Court had struck down the
retrospective effect of the Karnataka Act only on the aspect
of fixing separate pay -scales for Junior Engineers
graduates and non-graduates from any date prior to 9.1.1974
but the retrospective bifurcation of the cadre of Junior
Erigineers into Junior Engineers graduates (DivisionI) and
non-graduates (Division-II) was not’ touched by the High
Court Consequently, such bifurcation of combined cadre of
Junior Engineers into the separate cadres of
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Junior Engineers - graduates and nongraduates - had to be
treated to have come into operation from 1. 11. 1956. As
per the Act there was no question of treating the appellants
as belonging to the cadre of Junior Engineers (Division-1);
so too; nongraduate Supervisors would not be entitled to be
included in the cadre of Junior Engineers (Division-1) even
if they acquired degrees while in service.
6. Having heard the learned counsel of the parties, we
have reached the conclusion that the decision of the
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Tribunal cannot be sustained.
7. It is no doubt true that the appellants had joined the
service of the Karnataka State as non-graduate diploma
holder Supervisors; but by Government notification dated
18th June, 1969 the Governor of Mysore State in exercise of
his powers under Article 309 of the Constitution amended
Karnataka Public Works Department Service (Recruitment)
Rules, 1960. The said amendment came into force from
3.7.1969, when the said notification was gazetted. By the
said amendment to the recruitment rules a combined cadre of
Junior Engineers was formed and the category of posts of
Supervisors was omitted from the entry relating to the posts
of Junior Engineers in the schedule to the Rules. The
result was that from 3.7.1969, pursuant to amendment of
recruitment rules as per Government notification, there
emerged a combined cadre of Junior Engineers and all
erstwhile incumbents whether graduates or non-graduates were
put on par in a common cadre of Junior Engineers. ’The
earlier distinction between graduate Junior Engineers and
non-graduate Supervisors was abolished. The appellants, who
were earlier Supervisors, therefore, became Junior
Engineers, pursuant to the aforesaid Government
notification. Their inter se seniority vis-a-vis graduate
Junior Engineers had to be, determined accordingly by
treating all of them to be belonging to a common cadre of
Junior Engineers.
8. This situation not only continued but was further
highlighted by Government order dated 5.3.1 Q71 by which
parity of pay scales to graduates and non-graduates Junior
Engineers was extended with retrospective effect from 1. 1.
1957. Thus, the appellant Supervisors who were earlier non-
graduates became entitled to draw the same pay scale as that
of graduate Junior Engineers, as all of them from 3.7.1969
onwards belonged to the same cadre of Junior Engineers.
This situation continued till 9.1.1974, when by a Government
order bifurcation of the common existing cadre of Junior
Engineers was made effective by re-classifying posts of
Junior Engineers (Division-1) for graduates and Junior
Engineers (Division-II) for non-graduates.
9.It is of course true that this bifurcation was sought to
be made with retrospective effect from 3.7.1969 and that is
what even the subsequent Act 9 of 1975 purported to do. it
is to be noted that 52 petitioners who went to the High
Court by way of writ petition no. 3182 of 1973 and others
decided on 9.1.1981 were principally aggrieved by recovery
sought to be effected from their pay on the basis of the
impugned Government order and the Act bifurcating the common
cadre of Junior Engineers retrospectively with effect from
3.7.1969 and bringing into force separate pay scales for
these two cadres. It is also true that the High Court by
its final order
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gave relief to those petitioners by holding that
retrospective amendment to the Act by which the pay scales
were sought to be adversely affected could not be sustained.
10. The Tribunal is, therefore, right when it took the view
that the said decision of the High Court nowhere expressly
laid down that the Act was invalid in so far as it gave
retrospective effect to the bifurcation of the common cadre
of Junior Engineers with effect from 3.7.1969 and it was on
that basis that the Tribunal nonsuited the appellants. But
in our view the Tribunal’s final conclusion is not well sus-
tained. Once the Karnataka High Court took the, view that
retrospective bifurcation of pay scales of earlier existing
common cadre of Junior Engineers was bad, on a parity of
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reasoning and as a logical corollary it must follow that
bifurcation of that common cadre retrospectively from
3.7.1969 would also be bad; otherwise, an inconsistent and
incongruous position would result, namely, for both the
bifurcated cadres of Junior Engineers, being Division-I
comprising of graduates and Junior Engineers Division -II
comprising of non-graduates, one common pay scale (which is
really meant for the higher cadre of Junior Engineers
Division-I) would remain operative from 3.7.1969 till the
date the Karnataka Act 9 of 1975 came into force. It is
obvious that the aforesaid situation would be highly
discriminatory and violative of Articles 14 and 16(1) of the
Constitution, as it would result in hostile discrimination
against graduate Junior Engineers Division-I and
discrimination in favour of non-graduate Junior Engineers
Division-II.
11. It has also to be kept in view that the decision of the
Karnataka High Court in writ petition 3182 of 1973 and
others is acquiesced in by the State and has become final.
It is obvious that if as per the said decision, separate pay
scales for Junior Engineers (Division-I) and Junior
Engineers (Division-II) are not to be sustained with
retrospective effect from 3.7.1969, it necessarily follows
that such retrospective bifurcation of two separate cadres
also could not be sustained with effect from 3.7.1969.
Separate cadres cannot survive independently of separate pay
scales. Retrospective bifurcation of common cadres of Jun-
ior Engineers into two separate cadres of Junior Engineers
(Division-I) for graduates and Junior Engineers (Division-
II) for nongraduates can survive with separate pay scales or
not at all.
12. With respect, the Tribunal has not appreciated this
legal position. It is now well settled that even though the
Legislature has power to retrospectively amend a statute, it
should not be done in a manner which would violate
fundamental rights under Articles 14 read with 16(1). On
the day on which the Karnataka Act came into force, the
graduates and non-graduates Engineers belonged to a common
cadre of Junior Engineers and were drawing same pay scales.
There could be no discrimination between graduate incumbents
and nongraduate incumbents of a common cadre in so far as
common pay scales was concerned, as held by the High Court.
If that is so the Act by its retrospective sweep could not
destroy the fundamental rights of all these incumbents of a
common cadre to be treated alike for all other available
service benefits flowing from the common cadre.
13. In this connection, we may usefully refer to a decision
of Constitution Bench
526
of this Court in the case of State of Gujarat & Anr. v.
Raman Lal Keshav Lai Soni & Ors (1983 (2) SCR 287). At
pages 319 & 320 Chinnappa Reddy, J. speaking for the court
has made following pertinent observations:-
"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 t
o
conform to the do’s and don’ts of the
Constitution neither prospective nor
prospective laws can be made so as to
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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
rights: therefore, the requirements of the
Constitution will be satisfied if the law is
dated back by twenty years. We are concerned
with today’s right 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 constitutional rights accrued in the
course of the twenty years. This would be
most arbitrary, unreasonable and a negation of
history. It was pointed out of a Constitution
Bench of this Court in B.S. Yadav & Ors. etc.
v. State of Haryana and & Ors. etc.,
Chandrachud CJ., speaking for the Court,
"Since the Governor exercises the legislative
power under the proviso to Article 309 of the
Constitution, it is open to him to give
retrospective operation to the rules made
under that provision. But the date from which
the rules are made to operate, must be shown
to bear either from the face to 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." Today’s equals
cannot be made unequal by saying that they
were unequal twenty years ago and we will re-
store that position by making a law today and
making it retrospective. Constitutional
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
(constitutional) cannot be made to wipe out
present vice (constitutional) by making
retrospective laws."
14.It is equally well settled that even a statutory rule
which can have retrospective effect should not resulting
discrimination or any violation of constitutional right. In
the case of K. Narayanan and Ors. v. State of Karnataka and
Ors. (1994 Supp (1) SCC 44), R.M. Sahai, J. speaking for
this court has made the following observation in this
connection:-
"Rules operate prospectively. Retrospectivity
is exception. Where the statute permits
framing of rule with retrospective effect the
exercise of power must not operate
discriminately or in violation of any
constitutional right so as to affect vested
right. The rule making authority should not
be permitted normally to act in the past. Th
e
impugned rule made in 1985 permitting
appointment by transfer and making it
operative from 1976 subject to availability of
vacancy in effect results in appointing a
Junior Engineer in 1986 with effect from 1976.
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Retrospectivity of the rules is a camouflage
for appointment of Junior Engineers from a
back date. The rule operates viciously
against all those Assistant Engineers who were
appointed between 1976 to 1985."
15. In view of the settled legal position, therefore, it
must be held that the Act in so far as it sought to
introduce by Section 2(1) (i), retrospective bifurcation of
the common cadre of Junior Engineers into two cadres of
Junior Engineers (DivisionI for graduates and Junior
Engineers (Division-II) for non-graduates from 1. 11. 1956
is inoperative at law. It must be held, on a parity
reasoning which appealed to the High Court when it held in
writ petition no.3182 of 1973 and connected matters, that
Section 2(1)(ii) could not operate retrospectively to
destroy common pay scales available to both the Junior
Engineers graduates and non-graduates. Section 2(1)(i) also
could not operate retrospectively to bifurcate the said
common cadre with effect from 1.11.1956. It will also have
only prospective effect. Consequently, the bifurcation of
pay scales as well as of the common cadre of Junior
Engineers would legally become effective at the highest from
9.1.1974 when the Government order of even dated introducing
such a scheme saw the light of the day. It could also not
have any retrospective effect.
16. Once the above conclusion is reached, the result
becomes obvious. Both the appellants were belonging to the
common cadre of Junior Engineers upto 8.1.1974. That cadre
got bifurcated into the cadre of Junior Engineers (Division
I) for graduates and Junior Engineers (Division II) for non-
graduates with effect from 9.1.1974. Therefore, on 9.1.1974
respondents were required to fit in the appellants in the
proper cadre. Obviously and admittedly on 9.1.1974 the
appellants were having graduation degrees. In fact both of
them had got their degrees since long from 1967 and 1970
respectively as seen by us earlier. Consequently, when the
question of allotting the appellants to the-proper bifur-
cated cadre of Junior Engineers with effect from 9.1.1974
came up, the respondents were bound to treat the appellants
as belonging to the bifurcated cadre of Junior Engineers
(Division-I) for graduates with effect from 9.1.1974. We
cannot accept the extreme contention put forward by
appellants that they may be treated as belonging to the
Junior Engineers (Division-I) from 1967 and 1970
retrospectively as on our own finding such a separate cadre
of Junior Engineers (Division-I) did not exist during that
period. To recapitulate, from July 1969 till 8.1.1974 there
was a common cadre of Junior Engineers to which the
appellants belonged along with other incumbents. The cadre
of Junior Engineers (Division-I) saw the light of the day on
9.1.1974 as we have discussed earlier.
17. So, there is no question of treating the appellants as
belonging to bifurcated cadre of Junior Engineers (Division-
I) from any date prior to 9.1.1974 as claimed by them. The
appellants are therefore entitled to a partial relief to the
following extent. The respondent authorities are directed
to treat the appellants as belonging to the cadre of Junior
Engineers (Division-I) (Assistant Engineer, as now
designated) with effect from 9.1.1974 and fix the salary of
the appellants in the scale applicable to Assistant
Engineers with effect from that date and also to give to the
appellants all consequential benefits including arrears of
salary, ranking and seniority in the cadre of Assistant
Engineer on that basis.
18. The appeals stand allowed to theaforesaidextent. The
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common judgment and order of the Tribunal shall stand set
528
aside and substituted by the present decision. In facts and
circumstances of the case there will be no order as to
costs.