IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 12020/2008. Reserved on: 4.6.2010. Decided on:15.6. 2010 ______________________________________________ Lekh Raj and others.. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Dilip Sharma, Advocate. For the respondents : Mr. Rajinder Dogra. Addl. Advocate General. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that vide notification dated 23.7.1990, Himachal Pradesh Civil Service (Revised Pay) (First Amendment) Rules, 1990 were notified whereby the pay scales of ministerial establishment were revised with effect from 1.1.1986. In order to incorporate this provision in the Recruitment and Promotion Rules, Himachal Pradesh Police Department, Clerk (Class-III, Non-Gazetted) Recruitment and 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Promotion Rules, 1997 were notified. Petitioners were granted benefit vide office order dated 14.6.1996, 28.6.1996 and 23.10.1996, respectively. They were placed in the pay scale of Rs. 1200-2130. Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 were notified on 20.1.1998. These rules came into force with effect from 1.1.1996. According to schedule of these Rules, in place of existing pay scale of Rs. 1200-2130 (which was admissible to Senior Clerks), the revised pay scale of Rs. 4020-6200 was given. Similarly, in place of Rs. 1500-2700 (admissible to Junior Assistants), the revised pay scale to the category was provided as Rs. 5000- 8100. The petitioners were allowed the revised pay scale of Rs. 4020-6200 corresponding to pre-revised pay scale of Rs. 1200-2130. However, vide notification dated 1.9.1998, the post of Senior Clerk was abolished with effect from 1.1.1996. The pay scale of Junior Assistants was reduced from Rs. 5000-8100 to Rs. 4400-7000 and the ratio between Clerks and Junior Assistants was changed to 50:50. As per Annexure A-6, the post of Junior Assistant was to be filled up by way of promotion to the extent of 100% from amongst the Clerks who had an experience of working as such for a minimum period of five years in the cadre of the department in which he was working at the time of promotion. However, vide notification dated 31.5.2001, the provision of promotion from Senior Clerk to Junior Assistant was done away and instead it was 3 provided that the post would be filled up by way of placement. Vide notification dated 3.11.2001, the protection was limited to the extent of alleged excess payment given to the category of Junior Assistants upto 1.9.1998 only. However, the same protection was not granted to Senior clerks. Vide impugned notification Annexure A-9 dated 7.6.2005, the pay scale of Rs. 4020-6200 granted to the petitioners as a result of placement as Senior clerks during 1996 has been withdrawn. Mr. Dilip Sharma has vehemently argued that the petitioners were not heard before the issuance of Annexure A-9 dated 7.6.2005. He then contended that Annexure A-6 dated 1.9.1998 could not be given retrospective effect with effect from 1.1.1996. In other words, his submission is that rights, which his clients have acquired on the basis of existing rules, could not be taken away. He lastly contended that his clients have been discriminated against vis-à-vis category of Junior Assistants. Mr. Rajinder Dogra, learned Deputy Advocate General has strenuously argued that Annexure A-6 has been issued on Punjab pattern and he has justified the stand of the State whereby post of Senior Clerk has been abolished. I have heard the learned counsel for the parties and have perused the record carefully. Petitioners have been granted pay scale of Rs. 1200- 2130 as per Annexures A-2 to A-4 dated 14.6.1996, 28.6.1996 4 and 23.10.1996, respectively. Petitioners have further been granted pay scale of Rs. 4020-6200 on the basis of notification dated 20.1.1998 (Annexure A-5). Petitioners have been given the designation of Senior Clerks with effect from 1996. Petitioners have neither misled nor misrepresented the authorities at the time when they were granted pay scale of Rs. 4020-6200. However, vide notification Annexure A-6 dated 1.9.1998, the rights which the petitioners have acquired on the basis of Annexure A-5 dated 20.1.1998 were taken away. It is settled law in service jurisprudence that the State has the power to amend the rules retrospectively. However, it is equally settled that while doing so vested and acquired rights cannot be taken away. Petitioners have been granted the pay scale of Rs. 4020-6200 on the basis of Himachal Pradesh Civil Services (Revised Pay) First Amendment) Rules, 1998. These rules came into force with effect from 1.1.1996. Vide Annexure A-6, the pay scale of Junior Assistants was also reduced from Rs. 5000-8100 to Rs. 4400- 7000 in sequel to notification dated 21.9.1998. Vide another notification dated 7.6.2005 Annexure A-9, the pay scale of Rs. 4020-6200 granted to the petitioners on the basis of Annexure A-5 has been withdrawn. The matter is required to be considered from another angle. The petitioners have been granted pay scale of Rs. 4020-6200 by placing them as Senior Clerks. They started 5 drawing the salary in the pay scale of Rs. 4020-6200. However, without issuing any show cause notice to the petitioners, the same has been withdrawn on the basis of Annexures A-6 and A-9 dated 1.9.1998 and 7.6.2005, respectively. It is not the case of the respondent-State that the petitioners have misled or misrepresented the authorities at the time of release of pay scale of Rs. 4020-6200. Petitioners ought to have been heard before the issuance of impugned order dated 7.6.2005 (Annexure A-9). Respondent-State has not given any explanation why the pay of Junior Assistants has been protected on the basis of Annexure A-6. Respondent-State could not discriminate while issuing Annexure A-6 by protecting one set of employees and ignoring other set of employees. In case the pay protection has been granted to the Junior Assistants, on the same analogy petitioners were also entitled to pay protection, which they were entitled to before the issuance of Annexure A-6, i.e. the pay scale of Rs. 4020-6200 was to be extended. In case of Junior Assistants payment made upto 1.9.1998 has been protected. Their Lordships of the Hon’ble Supreme Court in Chairman, Railway Board and others versus C.R. Rangadhamaiah and others, (1997) 6 SCC 623 have held that the rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the 6 ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution of India, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. Their Lordships have held as under: “17. In B.S. Vadera (supra) it has been held that the rules under the proviso to Article 309 have effect subject to the provisions of the Act made by the appropriate Legislature under the main part of Article 309, if the appropriate Legislature has passed an Act under Article 309 and in the absence of any Act of the appropriate Legislature on the matter the rules made under the proviso to Article 309 are to have full effect both prospectively and retrospectively. Since the power of the appropriate legislature to enact a law under Article 309 has to be exercised subject to the provisions of the Constitution, the power to make rules under the Proviso to Article 309 has to be exercised subject to the provisions of the Constitution. The Court has, therefore, said : "Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other constitutional provision, must be enforced, if made by the appropriate authority." (p. 585] 7 18. This means that even though the President in exercise of his power under the Proviso to Article 309, can make rules which may have prospective or retrospective operation, the said rules may be open to challenge on the ground of violation of the provisions of the Constitution, including the Fundamental Rights contained in Part III of the Constitution. 20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. 21. In B.S. Yadav & Ors. Etc. v. State of Haryana & Ors. Etc., [1981] 1 SCR 1024, a Constitution Bench of this Court, while holding that the power exercised by the Governor under the Proviso to Article 309 partakes the characteristics of the legislative, not executive, power and it is open to him to give retrospective operation to the rules made under that provision, has said that when the retrospective effect extends over a long period, 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. (SCR p. 1068 : SCC p/557, para 76) 8 22. In State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., [1983] 2 SCR 287, decided by a Constitution Bench of the Court, the question was whether the status of ex- ministerial employees who had been allocated to the Panchayat service as Secretaries, Officers and Servants of Gram and Nagar Panchayats under the Gujarat Panchayat Act, 1961 as government servants could be extinguished by making retrospective amendment of the said Act in 1978. Striking down the said amendment on the ground that it offended Articles 311 and 14 of the Constitution, this Court said : "The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so as 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 rights, there-fore, 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. The 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. That would be most arbitrary, unreasonable and a negation of history." (pp. 319- 320) 9 23. The said decision in Raman Lal Keshav Lal Soni & Ors. (supra) of the Constitution Bench of this Court has been followed by various Division Benches of this Court. (See : Ex. Capt. K.C. Arora & Anr. v. State of Haryana & Ors., [1984] 3 SCR 623; T.R. Kapur & Ors. v. State of Haryana & Ors., [1987] 1 SCR 584; P.D. Aggarwal & Ors. v. State of U.P. & Ors., [1978] 3 SCR 427; K.R. Narayanan & Ors. v. State of Kamataka & Ors., [1994] Supp. 1 SCC 44; Union of India & Ors. v. Tushar Ranjan Mohanty & Ors., [1994] 5 SCC 450 and K. Ravindranath Pai & Anr. v. State of Kamataka & Anr., [1995] Supp. 2 SCC 246. 24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon (supra), B.S. 10 Yadav (supra) and Raman Lal Keshav Lal Soni & Ors., (supra). 33. Apart from being violative of the rights then available under Articles 31(1) and 19(l)(f), the impugned amendments, in so far as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement.” The Apex Court in State of Madhya Pradesh and others versus Gogendra Shrivastava, 2010 (2) S.L.J. 169 has held that the rights and benefits which have already been earned and acquired under the existing rules cannot be taken away by amending the rules with retrospective effect. Their Lordships have held as under: “12. It is no doubt true that Rules under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which have already been earned or acquired under the existing rules cannot be taken away by amending the rules with retrospective effect. [See : N.C. Singhal vs. Director General, Armed Forces Medical Services - 1972 (4) SCC 765; K. C. Arora vs. State of Haryana - 1984 (3) SCC 281; and T.R. Kapoor vs. State of Haryana - 1986 Supp. SCC 584]. Therefore, it has to be held that while the 11 amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules. The right to NPA @ 25% of the pay, having accrued to the respondents under the unamended Rules, it follows that respondents-employees will be entitled to Non- Practising Allowance @ 25% of their pay upto 20.5.2003.” In the instant case, the rights which had accrued to the petitioners on the basis of rules notified vide Annexure A-5 are being taken away vide Annexure A-6 dated 1.9.1998 by giving it retrospective effect with effect from 1.1.1996. This act is also violative of Articles 14 and 16 of the Constitution of India. Accordingly, in view of the observations made hereinabove and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the petition is allowed. Retrospectivity given to notification Annexure A-6 dated 1.9.1998 vide notification Annexure A-9 dated 7.6.2005 is declared ultra vires to the extent it took away vested and acquired rights of the petitioners to remain in the designation of Senior Clerks. Consequently, impugned order dated 7.6.2005 (Annexure A-9) is quashed and set aside with all the consequential benefits. No costs. (Rajiv Sharma), Judge 15.6. 2010 *awasthi*