Case: B.S. Vadera Vs. Union of India &amp; Others

currency, until provision, in that behalf, is made by or under an Act, of the appropriate Legislature, under Article 309. 25. It is also significant to note that the proviso to Article 309, clearly lays down that any rules so made shall have effect, subject to the provisions of any such Act. The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be subject to the provisions of the Constitution shall have effect, subject to the provisions of any such Act. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President or by such person as he may direct, are to have effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other imposed by the proviso to Article 309, regarding the ambit of the, operations 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. 26. In the case before us, the Indian Railway Establishment Code has been issued, by the President, in the exercise of his powers, under the proviso to Article 309 . Under Rule 157, the President has directed the Railway Board, to make rules, of general application to nongazetted railway servants, under their control. The rules, which are embodied in the Schemes framed by the Board under Annexures 4 and 7, are within the powers, conferred under Rule 157; and, in the absence of any Act, having been passed by the appropriate Legislature, on the said matter, the rules, framed by the Railway Board, will have full effect and, if so indicated retrospectively also. Such indication, about retrospective effect, as has already been pointed out by us, is clearly there, in the impugned provisions. 27. The decision of this Court in 1966-1 SCR 994 = (AIR 1966 SC 602 ) does not assist the petitioners. The rule that came up, for consideration, has been referred to, at p. 999, of the Reports, in the judgment of Wanchoo, J., (as he then was), and the Court specifically says that the rule, referred to by it, cannot be made, under the proviso to Article 309 of the Constitution. It is further stated that the notification, referred to, cannot be said to be a rule, regulating the recruitment and conditions of service of persons appointed to the services and posts, in connection with the affairs of the State. This Court further observed that the effect of the notification, or the rule, that it had to consider, was to select certain Government servants, who had been illegally required to retire, and to say that even if the retirement had been illegal that retirement should be deemed to have been properly and lawfully made. Finally, the Court said, that such a declaration, made by the Governor, cannot, in any sense, be regarded as a rule, made under the proviso to Art. 309. Having held that the rule, which was before it, was not one made under the proviso to Article 309 the Court further observed in that case, that it was not necessary to decide, whether a rule, governing conditions of service, of persons appointed in connection with the affairs of the State, can be made retrospectively under the proviso to Article 309. This decision, in our opinion, can be distinguished, on two grounds: (i) that the rule, in question, construed by the Court was held to be one, not coming within the purview of the proviso to Art. 309; and (ii) the question, as to whether rule, under the proviso to Art. 309, can be framed, to have retrospective effect, has been left open. 28. In this connection, we may refer to two decisions, of the Mysore High Court, and one of the Allahabad High Court. The Mysore Court, in the decisions, Govindaraju v. State of Mysore, AIR 1963 Mys 265 and Govindappa v. I. G. of Registration, AIR 1965 Mys 25, has taken the view that it is not open to the Governor, under the proviso to Article 309, to frame a rule, having retrospective effect. We may state that the decision in Govindarajus case AIR 1963 Mys 265 came up, before this Court, on appeal, in Nagarajan v. State of Mysore, 1966-3 SCR 682 = (AIR 1966 SC 1942 ). But this Court, in Nagarajans case, 1966-3 SCR 682 = (AIR 1966 SC 1942 ), had no occasion to express any opinion on the question as to whether the Governor under the proviso to Article 309, could frame a rule, having retrospective operation as it took the view that the relevant rules had not been made under Article 309. 29. A Full Bench of the Allahabad High Court, on the other hand, in Ram Autar v. State of U. P., AIR 1962 All 328 (FB) has taken a view, contrary to the one, expressed by the Mysore High Court. We are of opinion that the latter represents the correct view. But, even the Allahabad High Court has not given due importance to the mandatory words, used in the concluding part of the proviso to Article 309 that the rules made, by the authority mentioned therein,shall have effect, subject to the provisions of any such Act. This aspect has been emphasized by us, in the earlier part of this judgment. 30. To conclude, on this aspect, we are satisfied that the Scheme, Annexure 4, as modified by Annexure 7, framed by the 2nd respondent, Railway Board, such as it is, must have effect, as it does not suffer from any defect in its making and does not offend against the Constitution. 31.

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

Explanation:
0[ds]Therefore, we are not inclined to accept the contention of the petitioners that there has been a promotion, on a permanent basis in the first instance as Upper Division Clerks and, latter, as Assistants, which cannot be disturbed, by any orders that may be passed, by the 2nd respondent. We have already indicated that the regular promotions and appointments have to be made, under the Scheme, with effect from December 1, 1954There is no substance, in this contention, in view of the statement, made by the 2nd respondent, that this petitioner was confirmed, as a Lower Division Clerk in 1966, with effect from September 14, 1957, in which case it follows that he will not be eligible, for promotion, as an Upper Division Clerk, under the Scheme. The petitioner, in Writ Petition No. 96 of 1967, as pointed out, by the 2nd respondent, continues, even now as a temporary Lower Division Clerk, and he has not been made permanent, and, therefore, he cannot certainly be considered eligible, for promotion, under the SchemeOnce it is held that the said petitioner does not satisfy the requirement of the Scheme, them is no question of any discrimination, under Article 14, or violation of Article 16, arising for consideration at all. Therefore, both the petitioners, will have to fail, on meritsA Full Bench of the Allahabad High Court, on the other hand, in Ram Autar v. State of U. P., AIR 1962 All 328   (FB) has taken a view, contrary to the one, expressed by the Mysore High Court. We are of opinion that the latter represents the correct view. But, even the Allahabad High Court has not given due importance to the mandatory words, used in the concluding part of the proviso to Article 309 that the rules made, by the authority mentioned therein,shall have effect, subject to the provisions of any such Act. This aspect has been emphasized by us, in the earlier part of this judgmentTo conclude, on this aspect, we are satisfied that the Scheme, Annexure 4, as modified by Annexure 7, framed by the 2nd respondent, Railway Board, such as it is, must have effect, as it does not suffer from any defect in its making and does not offend against the Constitution.