Appeal Nos
797 803 of 1993
From the Judgment and Order dated 16791 of the Karnataka Administrative Tribunal in Application No 144391  dated 9381  251182 of the Karnataka High Court in WP Nos
20147 2014879 1134378  1016 1018 of 1981
SSJavali Gopal Singh and EC Vidyasagar for the Appellant
RNN Narasimha Murthy MT George SK Kulkarni M Veerappa and P Mahale for the Respondents
The following Order of the Court was delivered 56 Delay condoned in SLP C 3464 346993 CC 1959393
Both disposed of by this common order
Leave granted
The appellant who was working as Assistant Engineer in Public Works Department was transferred on deputation to Bangalore City Corporation under City Bangalore Cadre and Recruitment Regulation 1971 which permitted 75 of vacancies in the cadre to be filled in by deputation from PWD
In 1977 Karnataka Municipal Corporation Rules were framed under which the appellant was absorbed as Assistant Executive Engineer in the Corporation
Validity of these rules and absorption of the appellant was assailed in the High Court by way of a Writ Petition which was allowed
The rules were struck down and the absorption of the appellant in the Corporation was set aside
In 1981 the Govt
issued an Ordinance removing the infirmity in the rules
It was replaced by the Karnataka Municipal Corporation Amendment Act 1981 Act 40 of 1981 for short the Act 
Section 8 of the Act reads thus 8
Validation  1 The Karnataka Municipal Corporations Rules 1977 made in notification No HMA 270 MUN 77 dated 19th Dec 1977 and published as GSR 390 in the Karnataka Gazette Extraordinary dated 22nd Dec 1977 hereinafter referred to as the said rules shall notwithstanding anything contained in any judgment decree or offer of any court or other authority or in the principal Act be deemed to be as valid and effective for all purposes as if the said rules had been made under the Principal Act as amended by this Act and accordingly a all actions or things taken or done including appointments and promotions made under the said rules shall for all purposes be deemed to be and to have always been taken or done in accordance with law b i suit or other proceedings shall be maintained or continued in any court or tribunal or before any authority questioning the validity of any action or thing taken or done under the said rules and 57 iicourt shall recognise or enforce any decree or order declaring that the said rules or any action or thing taken or done thereunder as invalid on the ground that the rules were made without giving reasonable opportunity to persons likely to be affected by it to file their objections and suggestions
2 Notwithstanding anything contained in any judgment decree or order of any court or other authority or in the principal Act all appointments of Administrators made or continued before the commencement of this act shall be deemed to have been validly made for all purposes as if the said appointment had been made under the Principal Act as amended by this act and accordingly all actions and things taken or done by or under the authority of the Administrators shall be and shall be deemed to have always been validly taken or done and no suit or other proceedings shall lie or be continued in any court of law or any other authority on the ground that at the time when such action or thing was taken or done the appointment or continuance of the Administrator was not authorised by law Since the law had been amended and all actions taken including appointments and promotions were validated the appellant after coming into force of the Act was promoted as Executive Engineer and Superintending Engineer in 1981 and 1990 and Addl
Chief Engineer respectively
In 1991 those persons who had challenged validity of appellant s appointment approached the High Court once again in contempt jurisdiction for non implementation of the order passed in 1979
Faced with this situation the Govt
repatriated the appellant to his parent department just few months before his retirement
According to the appellant this affected him prejudicially both in status and pensionary benefits
He therefore approached the Administrative Tribunal which being of opinion that since it could not examine the  validity of orders in favour of appellant challenging his continuance which was pending in the High Court and the appellant was not going to suffer as he is bound to be paid pension either by the Corporation or the State 58 Govt
 the petition had spent out its utility and therefore dismissed it as infructuous
In Shri Prithvi Cotton Mills Ltd  Anr
vs Broach Borough Municipality  Ors
  this court held thus When a legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively
The most important condition of course is that the legislature must possess the power to impose the tax for if it does not the action must ever remain ineffective and illegal
Granted legislative competence it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise
A court s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances 
If the legislature has the power over the subject matter and competence to make a valid law it can at any time make such a valid law and make it retrospectively so as to bind even past transactions
The validity of a validating law therefore depends upon whether the legislature possesses the competence which it claims over the subject matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating law for a valid imposition of the tax
 In the above case the Validation Act was upheld
The same view was reiterated in Janapada Sabha Chihindwara etc
vs Central Provinces Syndicate Ltd  Anr etc
  and Yadlapati Venkateswarlu vs State of Andhra Pradesh  Anr 119901 Suppl
1 SCR 381
It is seen that under the Act the basis on which the 1977 Rules were declared void was removed and a appointments made or continued before 59 the commencement of the Amendment Act were declared to be valid and shall always to be deemed to have been validly made for all purpose as if the said appointments had been made in the Principal Act as amended by the Act
It is not in dispute that the State legislature is competent to make the Act
When the Act was made and validated past acts done or proceedings taken it was a valid Act and removed the defects declared by the Court
It must be deemed and shall always been deemed that the appointment of the appellant as Addl
Chief Engineer is legal and valid
Unfortunately the Act was not brought to the notice of the High Court when the direction to repatriate the appellant was made by the High Court
But the failure to bring to the notice of the court does not have the effect of nullifying the valid action legislatively taken
In these circumstances the order of the High Court and consequent order of the Govt
repatriating the appellant from the Corporation service to the State service are declared illegal
Consequently the appellant must be deemed to have been retired from service as Addl
Chief Engineer of the Corporation
The appeals are accordingly allowed
The appellant is entitled to all the consequential benefits all pensionary benefits etc
from the Corporation
No costs
GN Appeals allowed


Summary:
Rajasthan Educational Service Rules 1970 provides for appointment to Group DI Section 11 of the Rajasthan Education Service consistIng of the posts of Principal of Higher Secondary SchoolBSTCRTC Boys 100 per cent by promotion from qualified members of Group El comprising the posts of Headmaster of Higher Secondary School for boys and from those of Group IF  representing the posts of Headmasters of Secondary School of boys
Appointment to Group El posts is made 100 per cent by promotion of the members of Group IF 
The persons belonging to Group El who were not selected for promotion to Group DI Section II filed writ petitions before the High Court challenging the constitutional validity of the provisions In the Rules clubbing together Groups El and IF  for the purpose of promotion to Group DI Section 11
The High Court held the provisions as violative of Articles 14 and 1088 16 of the Constitution allowed the writ petitions and quashed the orders promoting members of Groups IF  to the posts in Group ID  Section II
The State and the affected members of Group F  of the Rajasthan Education Service filed the appeals by special leave
It was contended on behalf of members of Group IF  and the State that the provision clubbing groups IF  and E  as feeder cadre for promotion to Group D  Section 11 is in consonance with Articles 14 and 16 of the Constitution inasmuch as the Rules require preparation of a combined seniority list of all eligible members of Groups E  and IF  placing the former en bloc above the latter and among those selected for promotion to Group DI Section 11 all those from Group E  are to rank above those from Group IF  and as no person belonging to Group E  found suitable for promotion to Group ID  was left out filling the remaining vacancies from amongst suitable and qualified persons belonging to Group F  cannot be violative of rights if any of the writ petitioners inasmuch as qualitatively those promoted from Group F  were not inferior to the petitioners and the principle of equation adopted was fair to all
Allowing the appeals this Court HELD I1
The manner in which the Rule is worked that is consideration first of all persons in Groups E  for promotion to Group D  Section 11 and moving to Group IF  if necessary for filling only the remaining vacancies by selecting outstanding amongst them who satisfy the requirement of Explanation to Rule 2511 ie who have 5 outstanding very good  annual Confidential Reports in the immediate preceding 7 years ensures fairness to all while also maintaining efficiency in the administration
pp1109E F 1111B C 12
The total number of posts in Group DI Section II is nearly the same as the total number of posts in Group E  while the total number of posts in Group IF  is about rive times thereof
Since appointment to Group D  Section If is 100 per cent by promotion it is a distinct possibility as
in the instant case that the requisite number of suitable candidates from Group E  may not be available to rill all the existing vacancies in Group D  Section 11
In such a situation the only available option is to rill the remaining vacancies by selection of outstanding persons from Group F 
This is more so because the nature of duties and functions of the posts in 1089 Group E  and F  is similar and so is that of the posts in Group D  Section 11
The High Court overlooked this fact
pp1110G H 1111A B 13
If the need arises to look to Group IF  for filling the remaining vacancies on account of want of suitable
person in Group El those found unsuitable in Group E  cannot complain of discrimination if persons duly qualified and more suitable performing similar functions are selected purely on the basis of merit since the unsuitable left out in Group El are excluded from the competition on the ground of unsuitability and cease to remain contenders for the remaining posts
pp1111C E G H 14
The provisions made in the Rules for promotion to Group ID  Section II from Group E  as well as Group IF  are therefore not in any manner violative of Articles 14 or 16 of the Constitution
pp1111B E Chiranjit Lal Chowdhuri vs The Union of India and Ors
   Mohd Hanif Quareshi  Ors
vs The State of Bihar  and Md Usman  Ors
vs State of Andhra Pradesh  Ors
 1971 Supp
SCR 549 relied on
Constitutional Law by Prof Willis cited
From the affidavit of a senior officer giving all the relevant particulars alongwith a chart indicating the comparative position of persons in Group E  not found suitable for promotion to Group ID  Section  with those in Group IF  who were found fit for promotion on the basis of merit it was established that the principle adopted and followed was fair and reasonable and does not result in any injustice to the persons not found fit in Group E  for promotion the duties of the office of Principal as well as Headmaster are of a similar nature and there is no qualitative difference in the duties performed by persons belonging to Groups E  and IF  and that the standard of annual performance appraisal of the members of the two groups is also on par
pp1107G H 1108A D 3
It would be advisable for the State Government to lay down more clearly its policy for the future to avoid even the semblance of treating unequals as equals for the purpose of promotion in consonance with the well known maxim that justice should not only be done but should also be seen to be done 
p1093A B 4
The judgment of the High Court is set aside with the result that 1090 the writ petitions filed in the High Court stand dismissed
p1112A  Miss Kusum Tandon vs State of Rajasthan etc etc DB Civil Writ Petition No 2221 of 1990 on the file of Rajasthan High Court decided on 391991