Case: Cmd/Chairman,. B.S.N.L.  Vs. Mishri Lal

of Uttar Pradesh, AIR 1992 SC 2084 , etc. 14. Hence, the approach of the High Court, in our opinion, was totally incorrect. In State of Punjab and others vs. Arun Aggarwal and others (2007) 10 SCC 402 , it was observed (in para 30): There is no quarrel over the proposition of law that the normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not the new Rules. However, in the present case, we have already held that the Government has taken a conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case. 15. In the present case, a conscious decision was taken in 2005 providing that all the posts in question should be filled up by Limited Internal Competitive Examination. This was a policy decision and we cannot see how the High Court could have found fault with it. It is well settled that the Court cannot ordinarily interfere with policy decisions. 16. No doubt in some decisions it was held that a vested right cannot be taken away by amendment of the rules. But what does this really mean? Since a rule under the proviso to Article 309 is legislative in character vide Raj Kumar vs. Union of India (supra) the rule can be amended, even with retrospective effect, just as a legislation can be amended with retrospective effect. 17. In our opinion the expression `vested right could only mean a vested Constitutional right, since a Constitutional right cannot be taken away by amendment of the rules. 18. This is evident from the Constitution Bench decision of this Court in Chairman, Railway Board vs. C.R. Rangadhamaiah (1997) 6 SCC 623 . It was held therein that pension is no longer treated as a bounty but was a valuable Constitutional right under Articles 19(1)(f) and 31(1) of the Constitution, which were available on 1.1.1973 and 1.4.1974 (that is before the 44th Constitution Amendment). Since this was a Constitutional right it could not be taken away by amendment of the rules. The Constitution is the supreme law of the land, and hence a Constitutional right can only be taken away by amending the Constitution, not by amending the rules or even by amending the statute. 19. Hence in view of the aforesaid Constitution Bench decision the other decisions of this Court of smaller benches must be understood to mean that a vested Constitutional right cannot be taken away by amendment of the rules. It follows that if the vested right is not a Constitutional right it can be taken away by retrospective amendment of the rules. A legislative act can destroy existing rights, (unless it is a Constitutional right). Thus, even a taxing statute can be made retrospectively, and this usually affects existing rights vide Union of India vs. Madangopal, AIR 1954 SC 158 , Jawaharlal vs. State of Rajasthan, AIR 1966 SC 764 (770), Tata Iron & Steel Co. Ltd. vs. State of Bihar, AIR 1958 SC 452 , D.G. Gouse & Co. vs. State of Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar Karkhana Ltd. vs. Collector, AIR 1979 SC 1972 (para 6-7), etc. 20. A rule made under the proviso to Article 309 is a legislative act (though made by the executive). It is not a piece of delegated legislation like a rule made under a statute. Hence it can be amended retrospectively. 21. In para 8 & 9 of the impugned judgment, the High Court has observed: The main and the central contention from the side of the petitioners is that since the Old Rules specifically stated that since these Rules will remain effective for three years, it was not for the respondent No. 3 to change these Rules before three years, and to formulate new set of rules, changing the basic structure of promotion, as petitioners who were already working on the post of AD (OL) as far back as since 10.7.1995 on local officiating basis. We agree with the contention of the learned counsel for the petitioner, because, Law and Equity as well as Honesty and Fair Play jointly provide support of the petitioners contention, that once it has been laid down in the old Rules (Rule 10(iv) that they will not be changed for three years, respondent No. 3 BSNL, who is a Government of India enterprise, cannot change the Rules before expiry of three recruitment years, and cannot formulate a new set of Rules detrimental to the interests of the petitioners. This undertaking given by the respondent No. 3 in the earlier Rules, is sacrosanct, and the respondent No. 3 is bound to honour the same. They cannot and should not be allowed to say, a good-bye from the same. If they wanted to retain the right to change the Rules, they should not have given an undertaking by framing sub-rule(iv) of Rule 10 of the Old Rules. But once they have given this assurance in the Rules, they respondents cannot and should not be allowed to turn around and resile from the same. 22. We are of the opinion that the above observations are not sustainable. When Rules are framed under Article 309 of the Constitution, no undertaking need be given to anybody and the Rules can be changed at any time. For instance, if the retirement age is fixed by rules framed under Article 309, that can be changed subsequently by an amendment even in respect of employees appointed before the amendment. Hence, we cannot accept the view taken by the High Court. There is no question of equity in this case because it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it. As the Latin maxim states Dura lex sed lex which means The law is hard, but it is the law. 23.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We agree with the contention of the learned counsel for the petitioner, because, Law and Equity as well as Honesty and Fair Play jointly provide support of the petitioners contention, that once it has been laid down in the old Rules (Rule 10(iv) that they will not be changed for three years, respondent No. 3 BSNL, who is a Government of India enterprise, cannot change the Rules before expiry of three recruitment years, and cannot formulate a new set of Rules detrimental to the interests of the petitioners. This undertaking given by the respondent No. 3 in the earlier Rules, is sacrosanct, and the respondent No. 3 is bound to honour the same. They cannot and should not be allowed to say, a good-bye from the same. If they wanted to retain the right to change the Rules, they should not have given an undertaking by framing sub-rule(iv) of Rule 10 of the Old Rules. But once they have given this assurance in the Rules, they respondents cannot and should not be allowed to turn around and resile from the same22. We are of the opinion that the above observations are not sustainable. When Rules are framed under Article 309 of the Constitution, no undertaking need be given to anybody and the Rules can be changed at any time. For instance, if the retirement age is fixed by rules framed under Article 309, that can be changed subsequently by an amendment even in respect of employees appointed before the amendment. Hence, we cannot accept the view taken by the High Court. There is no question of equity in this case because it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it. As the Latin maxim states Dura lex sed lex which means The law is hard, but it is the law.