s Nos
630 32 of 1984 Under Article a2 of the Constitution of India
MK Ramamurthy Shanti Bhushan UR Lalit MR Shar ma SK Mehta BR Agarwala ND Garg EMS Anam PD Sharma CV Subba Rao IS Goel Dr KS Tiwari PH Parekh Sohail Dutt Uma Datta and VP Goel for the appear ing parties
The Judgment of the Court was delivered by SEN J
These petitions upder article 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 r6b 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 articles 14 and 161 of the Constitution and also ultra vires the State Government by reason of the proviso to s826 of the 
The purport and effect of the impugned notification is to nullify the decision of this Court in AS Parmar vs 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 neering is made an essential qualification for promotion of Assistant Engineers in the Irrigation Branch a Class II service under r6b 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 r6 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 AS 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
vs State of Haryana and the connected matters as also in these petitions under article 32 of the Constitution passed an order to the effect Mr KG Bhagat learned Additional Solicitor General says that the State Government will consider the cases of all the eligible persons including the appellantspetitioners 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 r6b retrospectively wef July 10 1964
The impugned notification was in these terms HARYANA GOVERNMENT PUBLIC WORKS DEPARTMENT IRRIGATION NOTIFICATION The 22nd June 1984
No GSR 47ConsArt 309Amend
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 PWD Irrigation Branch Rules 1964 namely 1
1 These rules may be called the Punjab Service of Engineers Class I PWD Irrigation Branch Haryana Second Amend ment Rules 1984
2 These rules shall be deemed to have come into force with effect from the 10th July 1964
In the Punjab Service of Engineers Class I PWD 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 AS 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 article 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 r6b 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 AS Parmar s case
In order to appreciate the points involved it is neces sary to state a few facts
The three petitioners TR Kapur Mohinder Singh and VD 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 PWD 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 r3c of the Punjab Service of Engineers Class II PWD 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 clc however provided that the requirements of clc 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 r5 of the Rules
The term service  was defined in r 12g to mean the Punjab Service of Engineers Class II Irrigation Branch Proviso to r5 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 wef December 25 1970
Under the unamended r6b of the 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 r6b 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 ie 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 s826of the 
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 r6b of the Class I Rules with retrospective effect under the proviso to article 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 r6b conferred a vested right on persons like the petitioners which could not be taken away by retrospec tive amendment of r6b
The third and the last submission is that the action of the State Government in issuing the impugned notification making retrospective 593 amendment of r6b of the Class I Rules was wholly arbi trary irrational and mala fide and thus violative of articles 14 and 161 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 s6 of s82 of the provides 826
Nothing in this section shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of 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 subsection 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 section 826 of the is in the nature of a fetter on the power of the Governor under the proviso to article 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 section
1 or sub section
2 thereof ie 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 ie allocated Government servants can not be varied to their disadvantage
There is a long fine of decisions starting from Mohammad Bhakar vs
Y Krishan Reddy down to Mohammed Shujat Ali  Ors
vs Union of India  Ors
  while construing the analogous provision contained in the proviso to section 1157 of the laying down that any rule made 594 under the proviso to article 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 section
7 of section 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 AS 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 r6b 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 section
7 of section 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 Under the Class I Rules as they existed immediately prior to the appointed day ie 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 AS Parmar s case for purposes of promotion under the unamended r6b of the Class I Rules as in the case of promotion to the post of Executive Engineer in Class I service under r6b what was essential was eight years  service in that class and not a degree in Engineering
The impugned notification which purports to amend r6b 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 s6 of s82 of the 
Faced with the difficulty learned counsel for the respondents strenuously contends that the proviso to s826 of the Act is not attracted in the present case
It is argued that on the appointed day ie 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 r6b
Reliance is placed on the notification issued by the State Government dated October 27 1985 constituting the Class II service wef 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 r3c of the Punjab Service of Engineers Class II PWD Irrigation Branch Rules 1941 a degree in Engi neering was essential till the Punjab Service of Engineers Class II PW 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 r3c of the Punjab Service of Engineers Class II PWD 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 r3c 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 r5 of the Rules
The term service  as defined in r 12g meant the Punjab Service of Engineers Class II Irrigation Branch
Proviso to r5 of the Rules however empowered the State Government to relax the condition
It is clear from the terms of the proviso to r5 quoted above that the State Government could relax the requirements of r3c 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 r3c ie 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 wef December 25 1970 Further it is wrong to suggest that on the appointed day ie on November 1 1966 they were all Overseers belong ing to the Class III service and were therefore not governed by the unamended r 6b
Two of them VD Grover and Mohin der Singh had already been  promoted as Offg
Sub Divisional Officers prior to the appointed day ie in January 1964 and July 1966 and were therefore governed by the unamended r6b of the Class I Rules and the third petitioner TR 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 r6b of the Class I Rules
In that connection it is necessary to recall that prior to the reorganisation of the States under the  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 s7 of section 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 
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 s826 of the Punjab Reor ganisation Act 1966
Under the so also under the  the power of the Governor to make rules under the proviso to Art309 of the Constitution had been controlled by the proviso to section 1157 of the former Act and s826 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 s1 or 2 of s82 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 r6b of the Class I Rules wef
July 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 s826 of the   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 6b of the Class I Rules had ended with the decision of this Court in AS Parmar s case
Curiously enough learned counsel for the respondents strenuously contends that the decision of this Court in AS Parmar s case was incorrect
He presses into service for our acceptance the decision of the High Court in o
P Bhatia vs State of Punjab ILR 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 3c of the 1941 Rules as held by the High Court in OP 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 r6b 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 AS Parmar s case which ex pressly overrules the view taken by the High Court in OP Bhatia s case
That apart the proviso to r5 of the 1941 Rules conferred power on the State Government to relax the requirement of r3c 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 r3c ie 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 6a 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 6b as they form two distinct sources from which the appointments to the posts of Executive Engineers could be made
As laid down in AS 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 r6 b of the Class I Rules was not a degree in Engineering but 8 years  experience in that class of service ie Class II Service
More fundamental is the contention that the impugned notification issued by the State Government purporting to amend r6b 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 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 articles 14 and 161 of the Consti tution
It is urged that they were eligible for promotion under the unamended r6b 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 r6b 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 ie 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 r6b it was not necessary to possess a degree in Engineering as held by this Court in AS 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 r6b 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 article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect BS Vadhera vs Union of India   Raj Kumar vs Union of India  K Nagaraj  Ors
vs Sate of AP  Anr
  and State Of J  K vs Triloki Nath Khosla  Ors  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 article 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 articles 14 and 161 of the Constitution State of Mysore vs MN Krishna Murty  Ors  BS Yadav  Ors
vs State of Haryana  Ors
  State of Gujarat  Anr
vs Ramanlal Keshavlal Soni  Ors  and Ex Captain KC Arora  Anr
vs State of Haryana  Ors
  A Constitution Bench of this Court in State of Gujarat  Anr
vs Ramanlal Keshavlal Soni  Ors
supra had to con sider the constitutional validity of the proviso to section 102 1a 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 Art311 of the Constitution
Nor was it permissible to single them out for differential treatment
That would offend article 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 articles 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 section 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 BS Yadav  Ors
vs State of Haryana  Ors
supra Since the Governor exercises the legislative power under the proviso to article 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 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 articles 311 and 14 and is arbitrary and unrea sonable
 Following the view the Court in KC Arora s case re ferred with approval to the observations of the Punjab  Haryana High Court in Harbhajan Singh vs State of Punjab 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
 The view expressed by the High Court has received the impri matur of the Court in KC 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 r6b 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
PSS Petitions allowed


Summary:
The proviso to sub s6 of s82 of the Punjab Reorgani sation Act 1966 mandates that the conditions of service applicable to any person referred to in sub s1 or sub s2 shall not be varied to his disadvantage except with the previous approval of the Central Government
Rule 6b 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 clb of r6 with retrospective effect from July 10 1964 thereby making a degree in Engineering essential for promotion to the post of Executive Engineer in Class I service
Rule 3c of the Punjab Service of Engineers Class II PWD 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 r5 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 6b having more than eight years  service in Class II service
In AS Parmar vs State of Haryana 1984 2 SCR 476 this Court interpreting the unamended rule 6b 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 Art32 of the Constitution
It was contended for them that the impugned notification purporting to amend r6b of Class I Rules with retrospective effect was ultra vires the State Government being contrary to the proviso to s826 of the  that the unamended r6b had conferred a vested right of promotion on them which could not be taken away by retrospective amendment under the proviso to article 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 articles 14 and 161 of the Constitution
For the respondents it was contended that the proviso to section 826 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 r6b
It was further con tended that under r3c of the Punjab Service of Engineers Class II 586 PWD 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 AS Parmar vs State of Haryana was incorrect
Allowing the writ petitions the Court HELD 11 The impugned notification dated June 22 1984 issued by the State Government of Haryana purporting to amend r6b 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 vires the State Government being contrary to s826 of the 
602EF S97CD 12 The proviso to s826 of the is in the nature of a fetter on the power of the Gover nor under the proviso to article 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 r6b 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 s826 of the 
The amend ment therefore must be struck down
596EG 597C Mohammad Bhakar vs
Y Krishan Reddy  Mohammdd Shujat Ali  Ors
vs Union of India  Ors
  and AS Parmar vs State of Haryana 1984 2 SCR 476 referred to
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 r6b of the Class I Rules was not a degree in Engineering but eight years  experience in Class II Service
597G 598CD 587 22 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 AS Parmar vs State of Haryana 1984 2 SCR 476 referred to
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 r6a of the Class I Rules could not be projected for promotion of SubDivisional Officers belonging to Class II Service to the posts of Executive Engineers in Class I Service under r6b as they form two distinct sources from which appointments to the posts of Executive Engineers could be made
598B 4
The proviso to r5 of the 1941 Rules conferred power on the State Government to relax the requirement of r3c 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 r3c ie a degree in Engineering
Presumably the petitioners were officers off outstanding merit as they were promoted as Offg
SubDivisional 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 ie on November 1 1966 the petitioners were Overseers belonging to the Class III Service and were therefore not governed by unamended r6b
Two of them had already been promoted as Mfg SUbDivisional Officers prior to the appointed day ie in January 1964 and July 1966 and were therefore governed by the unamended r6b
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 article 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 articles 14 and 161 of the Constitution
They do not in the instant case
599B F BS Vadhera vs Union of India   Raj Kumar vs Union of India  K Nagaraj  Ors
vs State of AP  Anr
   State of J  K vs Triloki Nath Khosla  Ors   State of Mysore vs
MN Krishna Murtv  Ors   BS Yadav  Ors vs State of liaryana  Ors   State of Gujarat  Anr
vs Ramanlal Keshavlal Soni  Ors  and Ex Captain KC Arora  Anr
vs State of Haryana  Ors
   referred to