.......

EX. CAPT. K.C. ARORA AND ANOTHER

STATE OF HARYANA AND. OTHERS

April 26, 1984

6Z3

[0. CHINNAPPA REDDY; E.S, VENKATARAMIAll AND R.B. MISRA, JJ.]

. The Punjab Government Nationai Emergency (Concessions) Rules 1965 Rules 2, and J(ii), as amended by the Haryana Government Gazette Notification No . . GSR 77/Const/AFt 309/Am.end/(1)/76 dated August 9, 1976 amending the definition of the experession "Mifitar ::, ervice'' in Rule 2, Constitutional Validity-The vested accrued right of a Government Servant cannot be taken away by making. amendments of the rules with retrospective effect.

In 1962 an emergency was imposed by the Government of India on account of_tbe external aggression by the Chine; e forces 'in the Indian

Trritory. The Government was in great need of youogmen to join the military service at the risk of their lives to serve the nation to cope with the

emergc:ncy needs of the Government-of India. The Government of India as well as the State Governments decided to give certain benefits to encourage

the young energetic youths to join military service at the critical juncture o~ national emergency and therefore issued different circulars and advertisements on radio and tbe'.press promising certain benets to youngmen who join tho mi!ifary service at the critical junCture.

Later on, on the instructions of the Central Government concessions as were promised through circulas and by 'other. means were incorporated in. the rules framed by the joint Punjab Government under Article 309 of the Constitution, titled as. "The Punjab National EmergencY (Concessions) Rules. 1965."

Keeping' in view the needs of the country and assurances and .concessions contained in conditions of service in executive instructions, the petitioners and appellants and many others like them joined the army during-· the emergency as commissioned office.rs in 19.63-64 and had rendered more than five years of service reckoned from 26.10.1982 i. e. date of proclamation of emergency and after their release froni the Army they were _entitled to benefits vested' in them undez the conditions of service.

The petitioners and appellants and a number of others similar to the

petitioner~; joined the Haryana Government as Assistant Engineers. conse- quent upon their appointments against tlie vacancies reserved for ex-army Officers, they became entitled to get their seniority fixed giviog them the benefit or their military service; but the gradation list prepared however did not include their miltary service for the purposes o( . fixation of their

seniorit~. The State of Haryana just to deprive the petitioners and others similarly situated, of mil]tary service, amended the Jules with retrospectiveeffect from November 1,1966 vide Haryana Government Gazette Notification No. GSR 77/Const/Art 309/Amendj(l)/76 dated March 22,1976

illtroclucing a proviso to rule 4 (ij) qf the 1965 Rules and vide Haryana' l 9pvcrnment Ga~tte N otication No G~R 182/Const/ Art ~09/ Ar:nend/(2)/. J

SUPREME COU"R T REPORTS (1984] 3 s.c.R.

76 dated 'August 9,1976. amending Rule 2 of the 1965 Rules.

These notifications restricted the benefits of military service upto January 10, 19(i8 the date on which the firt emergency , a; lifted with the result that the vested rights which accrued to the petitioners io l969, 1970 and 1971 have

been taken away.

The two writ pe itions Nos. WP 2065/1976and WP 2065/1976 an<:l WP 1088/1980 challenging the same were dismissed by the Punjab and Haryana High Court and hence their appeals Nos. CA 3095 and 3096/1980 by way of special leave. Some others directly filed petitions in the Supreme .Court under Art 32 and they are WPs 6437 and 6436 of 198'0.

Allowing the appeals and the Petitions, tc Court

HELD.: 1:1. The Parliament as also the State; Legislature have plenary powers to legislate within the field of legislation committed to them and subject to certain constitutional restrictions they can legislate pros p'ect.ively as well as retrospectively. [63ZC-D] .

1:2. It is, however, a cardinal principle of construcrioo that every statute is prima facie prospective unless it is expre>sly or by necessary implication made to have retrospective effect, But tho rule in general is applicable where the objct of the statute is to affect the vested rights or to impose new burden or to impair existing obligations; Up less there are words in the statute sufficient to show the intention ()f the legislature to effect existing rights, it is deemed to be prospcc!ive only. Provisions whiclt

touch a r.ight in existence at t.he passing of the statute are not lo be applied retrospectively in the absence of express enactmeot or necssary intendment. 'The Governor cim also exercise fhe S3me powers under Art. 309 of the Constitution and ther, e is not the slightest doubt that the impugned amendment brought in has been made retrospective.

The impugned amendments in the_ instant case by necessar~ implication have uodoubtedlda retrospective effect. [6 32Df]

Harbhajan Singh v. Stare o/Punjab [1977} 2 S.L.R. 180; Ex. Major. N.C F Singhal v.. Director General Armed Fors Medical Service: A.I.R. 1972 S.C. 628; State of Mysore v. M.N. Krishna Murty & Ors.~ [19731 2 S.C.R. 575; Raj Kumar

 v. Union of llidia & Ors., [1975]3 S.C.R. 963; Wing Commander!. Kumar v.

Union of India & Ors. [1982]'1 S.C.C. 116; B.S. Vadera v. Union of India & Ors., [1968] 3 S.C.R. 575 ; discussed. . ·

1:3. The Haryana Government cannot take away tbe accrued rights of the petitioners and' the appellants by making amendment of the rules with retrospective effect. The_ impugned rule 4 (ii) of the Punjab qovernment National Emergency (Concessions) Rule, 1965, as amende() by the Haryana Government Gazette Notification No. GSR. 77/Const./Art. 309/Amend/ (1)/76 dated 22nd March, 1976 .and the Notifica!ion No. G.S.R. 182/ Const/Art/309/ Amebd. (2)/76 dated 9th"" August, 1976 amending the definition of the t; Xpresio~ 'military service'. in rule 2, are ultra .vires the Constitution, in so far'as they e, ffect pfejudicially persons who bad acquired rights. (639B~C-D-E) .

State of Gujarat v. aman Ita/ l{eshav La! Soni, [1983]2 S.c.c; 33 ;

roUQw~.

l ' ·

K.C. AR?RA Y. HARYAYA (Jfisra, J.) . 625

Ol!fGJIIAL ]UIUSDICTI0:-1: Writ Petitions Nos. 6436)? of 1980

(Under .Article 32 of the Constitution of India]·

AND

Civil Appeals Nos. 3095-96 of 1980

: . f\ppcal by Spccialleav!! from the Judgment and Order dated

1 the lOth October, 1980. of the Punjab and Haryana High Court in c. ! . Writ Petition No. 2065 of 1976 & 1088 of 1980)

i '

I ,. f

P.C. Blwrtari for the Appellant.

Dr. Y.S. Clzlta/e and M.G. Ramachandran for Respondents .in Writ Petitions.

V.C •. '!falzajan; J.S. Goel and R.N. Poddar for Respondent.

 The Judgment of the Court wa~ delivered by

MISRA, J. The present writ petitions under Article 32 of the Constitution and the civil appeals by special leave aising out of . petitions under Article 226 of the Constitution. raise common ··· questions of law and are, therefore, bing-dispo~d of by II common judgment. ·

The patte; n of fncts i~ the present group of case~ is the same and. therefore, it is not necessnry to give the facts of each case kparatcly. In onler to bring out the points for consideration in these

~ . cases we would like to give the facts of writ petition No . . 6436 of ' 1980. . . . .

In 1952 un emergency was imposed by the Government of India on ?ccount of the external nggrcssiQn by the Chinese forces on the

ln~, an territory. The! Govcrnmdnt was in great need of youngmen 10 JOin the military service at the risk of their lives to srve the nation ~Cope With the emergency needs of the Go, ernmcnt of India.' The .ovcrnrncnt of Indiol as well as the St:tt~: Govcriuncnts qccided to i•vc c · 1 t • • . . ertam benefits to encourage the young energetiC yout.IS o JOID , ~'htary service at the critical juncture Qf national emergency . . The

a ~crnrncnt in the Stat.:s nnd the Centre issued difi'cr-en~ circulars . ,: b adertisements on radio and the press promisin~ ccrtam bc~fits iunu~cn t.o yougmcn who join the military srv1ce at the cn~1cal

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626 SUPRHIE COURT REPrJRTS . . fl984JJ S, c~

Jn .July 1963 a circular was issued by the Financial Com :i:. t sioner, Punjab wit~ :cgard ~the conessions _to civi, lian cmplo:: . and others who Jomed m1htary serv1e, wlncli will account t

increments, seniority and pension in civil employment.· Later 0r on the instructions of the C'enfral Government concessions as wcr~. promises through circulars and by other means were incorporated in the rules framed by the joint Punjab Government under Article 309 of the Constitution.. ·

Keeping in' view the needs of the. country and assurances l contained in conditions of service iil executive instructions the . petitioners and th.c appellants and many others like them joined the. ,

1 army during the .~:mergcncy . mf C'om missined Officers in 1963-64 .. ' They were commissioned officers in tbc Indian Army for more . r .. than five years and after their release from the Army they were

~ entitled to benefits vested in them u.nder the conditions of service.

The Haryana Government in tile year 1969 advertised 16 pQsls of temporary Assistant Engineers in P. W.D.,· B & R Branch. At the t:me of the advertisemeat on 28th of January, 1969 8 posts'out . of the total of 16 were reserved for e~-emergency commission~ 'officers and servicemen. Although the advertisement was for 16 ·

posts but at the time of selection s 5 appointment were. made, 'out of . which 20 posts were reserved for ex-emergency . C.:Jmrnissioncd • o1Icers. Out of this quota of 10 po-.u only 7 aptXJintril.ents from :-

amont the ex-em.eT~ O:, mmiM1on.:rl oi= .. -as ~= I!IJ.Ik. ' . .Rcqunite qaaiifi..cations f.:>r n:-ema~ roned ofun allJ

ic.tmen w-ere as fo~ :

.. I. Diploma in ci, il engineering from a reCQg:nised institu-

.tioo. ·

2, Five 1ears ntinuous service with distinguished record.

. . .

. A:goati:n:eiFoq::Nto:vuke:m:b:erc.:glfe97:0:u:318:~:po s.fitvs. •oyfcaterms'pocroaryntinAusosuisstant ··~ scr:vice; the pcr!od commencing from 26.10."1962 will only be . taken into consideration. •· '

Engtncers wc; re advertised out of 18 posts were reserved .. for es . ' emergency commissioned officers. At the time of making appaint- } ments, however, 9~ persons were appointed and out of these 99 pasts ,. ~

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•. t.

. K.C. ARORA v, HARYANA (Misra, J.) • 627

90 posts were declared eserved for ex-emergency commissioned officers. But agai~ only 7 ex-emergency commissioned officers were A appointed in' response to te advertisement.

Petitioner No. 1 on selection had joined service. on 17th of August, 1971. The second advertisement also contained the same qualifications as were in the first advertisement. Thus the two petitioners in writ petition Nos. 6436-37 served the Indian Army.for more than five years and thereafter those petitioners were-appointed in the service of the Haryana Government as temporary Assistant Engineers against the posts reserved for the ex-emergecy commis~

sioned officers. There were a number of other persons similar t!) the petitioners who were !llso appointed against the vacancies reserved for ex~Aimy officers.

The Government ofPuJijab prior to the formation of Haryana made statutory rules under Article 309 of the Constitution w.hich are called 'The Punjab National Emergency (Concession) Rules, 1965 .. The relevant rules 2, 3, 4, and 5 of these rules are as uder:

"2 .. Definition.:-: For the purpose of these rules, the . . expression 'military service' means enrolled or commissioned service in any of the three wings ofthe Indian Armed Forces

(including service as a Warrant Officer) rendered by a person during the period of operation of the proclamation of' emergency made by the President under ArtiCle 352 of the Constitution of India on. the 26th October, 196.2 or such other service as.may hereafter be declared as military service .

for the purposes of these rules. Any period of miiitary train- . ing followed by military service shall also be rckoned as Military Service. ·

' ... '

3. Maximum agelimit and minimum qualification :

i) The maximum age-limit , prescribed.for appointment to ,

any service o~ . post . shall be relaxed in, favour of a persop who bas.rendered military ~rvice tq:the extent Of his military Service, provided he pruces a certificate from the competent . .authority that he .hild rendred continuout military service for' a . period of not less . than six months and was discharged because of demo~ bilisation or reduction not more than three year.s prior

to tht: da~~ t;>f i~ reistration at an employment

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( .. • 628 SUPREME COuRT REPORTS [1984] 3 s.c.R.

exchange or tlle date of his application for employment under the Government.

1i) A person who has become disabled while in military

s'ervice sha11 also" be entitled to exlude from his' age the period from the date he was disabled up to the date of his application for appointment to any service or post under the Government, or till the end of the present emergency, whichever is shorter.

iii) In case a person who has rendered military service does not possess the minimum qualification prescribed . for an~ service or post, he' shall be deeed to possess these qualifications if the appointing authority certifies that such a person has acquired by experience or other~ . wise qualification equivalent to those prescribed for that service or post .

Increment.s, seniority and pension : period of military service shall count for increments, seniority and pension as under:- ·

. (i) Increments : The peridd spent by a person on military service, after' attaining the minimum age, prescribed ' for appointment to any service or post, to which he is appointed, shall count for increments. Where no such minimum age is prescribed the minimum age shall be as laid down in rules 3.9, 3~10 and 3'11 of the Punjab Civit'Services Rules Volume II. Tbis" concession shall, however, be admissible ori)y. on first appointment.

(ii) Seniority : The period of military service mentioned in clause .(1) shall be'taken into consideration for the purppse .of determining th~ seniority of a person who !:)as ren~ dered military service. • .. .. .

(iii) Pension: The period of military serv"ice mentioned in clause (i) shall count towards pension only in the case of appointments to . permanent services or posts under the Government subject to the following conitions : ·

 (1) The person concerned should have earned a pension under. military rules in respect. of 'the military service in

question.

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K.C. ARORA v. HARYANA-(Misra, J.) 629

(2) Any bonus. or gratuity paid in respect of military service by the defence authorities sl; all have to be. refunded to A the State Government.

(3) The period, if any, between the date of discharge from military service and the date of •appointment to any service or post under the Government shall count for pension, provided su.ch period does not exceed one year. Any period exceeding one year but not ex .. eediog three years may also be allowed to count for penion in exceptional cases . . under the orders of the Gl>v-:rnment.

5: Seniority, promotion, increment, pesion andleave of Government employees :-The p~!riod spent on military ser- · vice by a Government employe~ shall-.eout}t for. seniority promotion, icrement and pension in the service or post held by himimmediately before his joining military service. A

permannt 'Government employee wlio renders military service, shall earn leave during, such service according to the leave rules applicable to him immediately before his joining· military service; A emporary Government employees shall duririg military service, be governed by the mihtary rules in . all respects. The employee concerned shall be entitled to

proforma promotion in his parent department under the 'next below; rule and also to seniority in higher posts to which he would otherwise have been entitled if he had not joined militat'y service.

According to these rule, s and the previous assurances given by the Government the petitioners were to be given seniority by countng period of military service for the purpose of determining . seniority, increments and pension etc, Immediately on appointment of the petitioners as temporary Assistant Engineers they became entitled to get their seniority fixed giving them the benefit . ' of their military service but the gradation list prepared, owever, did n, ot include the military service of the pe, titioners for the purpose of fixation of-their seniority. The State of Haryana just to deprive-the petitioi?-ers, and others similarly situated, of military service amended the rules with retrospective effect from lst November, 1966 vide Haryarla Government Gazette Notification .No. G.S.R. 77/Const/Ait. 309/Amend/(1)/76 dated 22nd March . . '

1976. The Amendment was Iilade in the rule 4(ii) by adding a proviso, which is in the following terms ;

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. SUPREME COURT REPORtS. . ti984] 3 s.c.R.

"Provided. that a person. who has availed of concession under sub-rule (3) of rule L(3) shall not be entitled to the concession under this clause."

. The Government also issued a notification No. G.S.R. 182/ Const/Art/. 309/Amed/(2)/76 dated 9th Augut, 1976 making amendment in the definition of the expression 'military service' in • • rule 2 just to .retreat from their previous commitments. , It reads :

.j . , : "Fo( the purpos"e of these ruleli the expression 'military service' means the service rendered by a person, who had ben enrolled .or commissioned during the period of pperation of the proclamation of emrgency made by the President under Article 352 of the Constitution of India on '26th October~ 1962 .in any of the three wings of the Indi'an

Arm.ed Forces (including the service as a Warrant Officer) du; ing the period of the said emergency or such other" service as may hereafter. be declared as military ser.vice for the

.'~ purpose of these rules. . An~ period of military training

followed by military service shall also be eckoned as military . s.ervice."

This notification has ben issued with retr.ospective effect

...,-

E from Ist cif November, 1966 and restricted the benefits of military service upto lOth of January, 1968, the date on which . the ·.first emergency was lifted with the result that the vested rights which · . .1-....~ accrued to the petitioners in 1969, l97~ and .l971 hve beeli taken

away. '

some of the ex-milit; uy officers challenged the impugned amendment and the consequent gradatioJ?. list by filing two peti- .tions, writ petition No.:l088 of 19SO and writ petition No. 2065 of 1976 in the High Court of Punjab and Haryana under Article 226 of the Constitution. Both these wri~ petitions were dismissed by the High court and they gave rise to civil appeal Nos. 3096 and 3095 f 1980 -respectively. Some of the ex-military officers have filed writ petitions directly before this Court under Article 32 of the• Constitution and they ar.e writ petition Nos. 6436 nd 6437 of . 1980.

 The petitioners in the vrit petitions undet: Article 226 of the Constitution before the High Court challenged the amndment of the Punjab Government National Emergency (Concession) Rules

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k.C. ARORA V. HARYANA (Misra, J.)

1965 with retrospective effect as violative of Arts. 14, 16, 19,31 and 311 of the Constitution 'and prayed fo~ the following relief :

1. 'lhe Punjab Government National Emergency (Concession) Ha'ryana First Amendment Rules, 1976. pe .declared ultra vlres Article l6 of the Constitution of India.

A writ'in the ature of ceftiorqri quashing the seniority list . of Haryana Service of Engineers, PWD (B & R

Branch), Class II be issued.

A writ in 'the nature of mandamus directing respondents

1 and 2. to declare the pe!itioners senior to respondets. C ...

 The High Court came to the conclusion that the petitioners have availed of the concesion un.dcr sub-rule (3) of rule 3 of 1965.

Rules inasmuch as the educational qualifications in the case of the petitioners had been relaxed 1n terms ofsub-rule (3) of rule 3 and they had wailed of these concessions at the time of their recruitment as te[)lporary Assistant Engineers. Now by the impugned amendment the concession of doubte benefit has been withdrawn by . adding the proviso to cl. (ii) of rule 4 introduced, in 1976. previo~

sly an ex-servicemen could avail of the concession of . relaxation in the educational qualification at the time of recruitment on the basis of his military seryice. Under rule 4 he could count military . service towards seniority. The proviso has taken. away the second " benefit. The ex-se, rviceman who has been recruited after availling

ofthe cqncession in academic qualifications cannot count his military service towards sepiorlty in the civil post . held by him.

This concession has been withdrawn by the Governor in exercise of

his powers under proviso to 'Art. 309 of. the Constitution and the amendment having been made in exercise of the le, gislative powers conferred on the (}Qverhor by the Constitution are valid and suffer fro in no infirmity. The High Court also took the view' th!lt there is no estoppel agains~ tne Government in tlie xercise of its legislative soVereign or executi'#e powers. The State could am.end the 1965 Rules and take away the benefits bestowed on the petitioners. , It also held that the. rules can be f[aiped with retrospective effect

an'd they can take away even vested rights. In the opinion of the High Court the diplqmaholdrs i~ engineering on the basis of their educational qualification formed one class separate from other ex-emergency commissioned officers .who are degree holders in engineering and that classification i~ the service can be made on

632 SUPREME COuRT REPORTS


. the basis of educatioal qualifications and such a classification is not bad.

The appellants in the appeals against this judgment of the High Court reiterated the same contentions before this Court. In the two petitions _under Art. 32 of Constitution also similar points have been raised. The main contention on behalf of the appellants

.. ,.. ..

as well as on behalf of the petitioners is that the rules could not be + • amended with retrospective effect to deprive them of the vested rights and if the appellants and the petitioners are entitled to the benefits of military service perforce t, hey would be much more senior to o.thers and the gradation list .prepared in complete ignorance of the military service will not be according to law.

I It may be pointed out at the very outset that the Parliament as . also the Sate Legislature have plenary powers to legistate within the field of legislation committed to them and subject to certain con- -· stitutional restrictions they can legislate prospectively as well as f

I? r.et_rospectively. It is, however, a cardinal principle of consttuctution

. that every statute is prima facie prospective unless it is expressely or by necessary implicatiqn made to have retrospective effect. But the

le in general is applicable wher.e the object of the statute is to.· . affect the vested rights or to impose new burden or to impair existing obligations; Unless there are word's in the statute su.fficjent to show the .intention of the legislature to effect existing rigQ.ts, it is deemed t'o be prospective only. Provisions which touch a right in existence at the passing of the statute are not to he applied ietros• pectively .. in the absence of express enactment or necessary interidment~· The Governor can also exrcise the same powers under Art.

F 309 of tile Constitution and thereis not the slightest doqbt that the _impugned amendment brought in has been made. retrospective. The impugned amendment in the instant case by necessary implication have undoubtedly a retrospective effect.

. For the petitioners jt was contended that the benefits acquired could not be taken aw\y by an amendmept with retrospective effect. .

It was further contended 'that tl!.e amennient was discriminatoJ,"y . and that the retrospectivity given to the provisions ofthe Amending Act could not cure the discrimination introduced by the Act and sought to be plrpetuated bY"it. In support ofthis contention reliance was placed upon flarbhfljan Singh v. The State of Pujab(l),

(I) [1977] 2 S.L.R .. l80.

...

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K.C. ~RORA v. HARYA]'IA (Misra, J.) 633

In that case te question that fell for consideration before the Con-,· stitution Bench of the P'unjab and Haryana High Court was regarding the intrprtation of rule 3(iii)(cc)(ii)(b) ofthe Demobilised Indian Armed Forces Personnel (Reservation of Vacancies) in

Punjab Civil Service. (Judi&l Branch) (First-Amendment) Rules,

1976. The Demobllised Indian Armed Forces Persopnel (Reservation of Vacancies) iri the Punjab Civil Service (Judicial Branch) Rules, i969, liad been repealed and the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies) in the Punjab Civil Service (Judicial Branch) Rules; 1975, as amended, were in force and these . exCluded from the category of released Armed Forces Personnel, persons who had joined a civil service :or the Union or a State or a civil post under the Union or a State•after their release from the Armed Forces of the Union. The COl, Jrt dealing with the question '

• I

observed : ...,_ '

"Now the rule-making.authority mu"st have been aware that a competitive examination for appointment to the servic;:e

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 candidates who were eligible under the old rules but became ineligible by reason of an amendment of the rules made after t)le process of selection had almost reached a finnl stage. The amendment did not in any manner touch the qualifications of the candidates.

Had the amended rule been in force fron;1:the beginning, persons in the tosition of the "petitioner might not bil.Ve accepted any eploy_nient and preferred to wait for selection and appointment to the Punjab Civil Service (judicial Brancl\). Are they to be penalised "by barring their entry into the Punjab Civil Service (Judicial. Braach) because they_ accepted employment at a time when acCeptance of such employment was not a bar to appointment to the service ?

We do not tbinklhat we wiil be justified in attributing such an unreasonable intention to the rule-making authority. In

QUI view, the only reasonable interpretation of the amended rule, consistent with the prevail'ing; situatiou, is to hold that

only th_ose prsons who having joined, the service of the

Union or the State or a pst underthe Union or the State previously continued to hold the post on the date of the com

ing into force of the rule, are excluded from appointment to the Punjab Civil Service (Judicial Branch). he eJ~.pression 'joined

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. SUPREME COURT REPORTS,

(1984) 3 S.C.R

or joins' must be_ given a reasonable interpretation in the ·

context of tl¢ situation and we think .that our interpretation. does not strain the .language o.r attributes unreasonableness to the rule-making authority. In that View, the petitipner cannot be said to be ineligible for appoi_ntment." . .

Next reliance was placed upon Ex-Major N.C. Singhal v. : Director Ge!leral, Armed Forces Medical Service.<1) ln that case the conditions of service of the appellant were.governe~ by paragraph 13 of the Army Instruction No. 1/S of 1954 and his previousfull py · commissioned service shout<! have been taken in the matter, of 'antedate' for the purpose of his pay. The conditions of service were, -however, sought to be altered by Army Instruction No. 176 of 1965 .

to tlie prejudice of tlie ppetlant. Tliis Court held that the condi- . tions . cif service in this regard were not liable to_ e altered or modified to the prejudice of the appellant by a subsequent administrative (Army?) instruction which was gi'.!en retrospective effect from 26th October, 1962.

Reliance was also plac, ed upon Sta_te of Mysore v.' M.N.

Kirshna Murthy &Ors.(z) In that case also the rules_ of 1959 had been amended which sought to disintegrate the service which had been

integrate~: This Court held that such amendment made (or the

purpos~ .:flustifying the illegal promotion made, in the teeth of-the

protection conferred by Articles 14 and:16(1) of the Constitution of ..

India upon Indian citizens in Government service, could not be up- . held.. The power of making rules relating to recruitment and conditions of service under the proviso to Article 309 could not be ued to validate unconstitutional discrimintion in promotional_ chances of Government .. servants who belonged to the same category . ..,..

 Shri Mahajan appearing for respondent No. 1 in reply on the other hand contended that the rules made under the proviso to Article 309 of the Constitution are legislative in character and, therefore, can be given: effect retrospectively:. In support of his submission he counted upon Raj Kumar v.· Union~~ India & Or~.(3J

He also relied oil Wing Cpmmander J. Kumar v. Union of India & Ofs.C'> In that case a ontention was raised that the impugn_ed rule ,, .

(1) A.I.R. [J9?,2] SC 628.


(3) [19 sJ 3. s.c.R. 963 ( 4) [1982] 2 s.c.R: 116 ·

k.c. ARORA v. HARYANA (Misra, J.) 635

not having been specifically declared to be retrospective in operation, its provisions cannot be applied to the appellan! inasmuch as be had been inducted into the R & D cadr~ long prior to the promulgation of the new rules. This Court dealing with th'e point observed :

"We have aheady found that, as a matter of fact the practice geneially foitowed ·"in the R. & D Organi.sation even . prior to .the prom!lgation o_f the impugned rules, was to reckon seniority with reference to the date of attainment of the rarik of su6stantive major/equivalent. Even otherwise, when a statutory rule governing seniority is issued in respect of a service, the said ru1e would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the rul~ -in future, there is no element of retroactivity involved; Of course,. the rules will not operate

.· to deprive any person of promotions already earned in the past, but, forpurposes of future promotions anp seniority in the department, the :principles !slid down in the impugned rule will necessarily govern ~II the personnel alike."

This case instea'd ofsupporting the contention of Shri Mahajan goes to strengthen the contention raised on behalf of the appellant and the petitioners. ..

Much emphasis was _laid by Shri Mahajan on the case of B.S. Vadera v. Union of India.~ Ors.(l) In t-hat case the ptitioners, , who were woking as Assistants, were reverted as Upper Divisiop

Clerk in 1967 by the operation of the Railway Board's Secretariat Clerical Servic~ (Reorganisation) Scheme. The said scheme was framed on February 5, -1957 but was brought into effect from December I, 19-54. Certain modifications to the scheme relating to the manner of filing up f permanent and temporary vac; ancies in Grade I of the Service were , made in 1963. The petitioners challeng ed the orders of reversion as illegal inasmuch as their promotion as Upper D.vision Clerks and later as Assistants had been on a permanent basis and could not be :disturbed .and that the scheme as

well as the. various orders passed by the respondents were violat.ive of Articles 14 and 16 of the Constitution, that the Railway Board hadno power in law to .frame either. th~ scheme or to modify the · scheme so. as to have retrospective effect from December 1, 1954 ..

This Cout held ihat the ranking given to the petitioners as a resu)t

(1) [1968] 3 SCR 575.

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636 '"""'"""" wom U984Jh.,, J of which the ipugncd orders of r~ersion were passed was in .

ccordance with the scheme as modtfied. m_I963, and once it is held

that the p-etitioners did not satisfy the requirement of the scherne for being retained as Assistants, there was no quetlon of aoy discrimi 'nation under Article .14 or violation of At1~1c 16, and that tbe Indian Railway Establishment Code had becir Issue~ by the President in exercise of lhc powers vested in him by the proviso to Article 3()9 of the Constitution.

Rule !57 of the Cod!! giv<; s the Railway Board full powers 1o .make rules <;>f gcnerl application to non-gettcd

r'aiJw; y servants under their control. ad th.~ power to make rules .l with rctrospelivc effect cannot be-denied to the Railway Board... . l Accordingly, the schcm~ framed by tbe said Board i_n 1957 could be made rctrosiicetivcly' clfcctive fro'm December 1, 1954, This c'ase I undoubtdcly supporli Shri Mahaj:m in his contention that the rules can be made with retro-spective elfcct and there is nothing wrong in such a rule. This case, however, did not dal witll the point specifically raised in the prcscn't csc.

The question, however, has been pointedly considered 'recntly by a Constitution Bench of this Court . in Sra!<? of Gujarai v. Ramon Lal K<'rhm• La! Soni.(1) Iri that case the Gujarat Panehayats Service . was initully constitued soon after the. passing of the Gujarat

Panchayat~ Act. :There were three cdres :the district cadre, the taluqa cadre and the Iocalcadrc. Secretaries. 00\eers and servants of the olu village panchayats unJcr the llomb:ty Villag~ Panchayats Act, 1958 bcamc secretaries, officers and servants of the new _gram panchayats under s.325(2)(x) of the Gujarat Panchayats Ac!, 1961.

Talatis aud kotwuls, who were governml!nt scrvallts wcrl! secretaries and olllc.:rs of the oiJ villag.: panchayats .und.:r the Bomb.1y Village . . Panchayats Act :nJ so they became sccrctarks and officers of the

new gram panchayats unda the Guj;1rat Panchayats Act. 1961.

Svmc munidp<tlitics conslitut.:d for municipal districts and municipal boroughs under the 13omba.y District Municipal Act and lotte Bombay Municipal lloroughs Act, as appli<:d to areas in tlic Stale of Gujarat. were converted into Gram anJ Nugar Panchynts under section 307 of the Gujarat Panchayats Act anu all olficcrs and servants io the cmrh>y of such municip:1litics bcc:1mo: officers nnd scrvnts of interim _l'anchayals and alll)cat..:J t~> the pinchayat scvice. Thus,

ccrctanes und olliccrs of dissolved municipalities also became secretaries nnd olllc~:rs of Gram and Nagar pimchayats. District

~~> [I<JKlJ 2 sec JJ •

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ICC. ARORA v. HARYANA (Misra, J.) 637

Local Boards con'Stituted under the Bombay Local Boards Act stood dissolved on the passing of the Gujarat Panchayats Act and all officers and servants in tl:te employment of the Board were deemed to be transferred to the service of the successor District Panchayat

under section 326 of the Gujarat Pailchayats Act. Also allocated to the panchayat service were those government servants who are transferred to the panchayat under section 157 and such other officers and servants employed in the state service as wer~ necessary. All these secretaries, officers and servants became p1embers of a service under the State as soon , as they were allocated to the panchayat service. But, by the Amending Act, secretaries, offiers and.servants of Gram and Nagar Panchayat who were allocated to the panchayat service from the ranks of tl1e ex-municipal employees were. sought to be meted out .differwtial treatmnt ·.from the other members of the panchayat service, more particularly the secretaries, officer and serVants of Gram and Nagar Pnchayats who were drawn from the, ranks of secretaries, officer and servants of old village panchayats, that is, the Talatis and Kotwals. Their status as members of a service under the state was to go with no option to them. Rtrospectivity was sought to be given to the AmendingAct so that they could not claim that they were ever' government servants' and so could not be made to cease to be government. servants and so that they could not claim that they were singled out for differential treatment for if the~ were never in the panchayat service they could not complain of being . taken out of the panchayat service. Brother 0. Chinnappa Reddy speaking for the Court emphatically observed:-

Now in 1978 before the Amending Act.was passed

. thanks to the provisions of the principle Act of 1961 the exmunicipal employees who had been allocated to the panchayat service as Secretaries Officer and servants of Gram and Nagar. Panchayats, had achieved the status of gov.ernment servants. Their status as government servants' could not be . extingu.ished so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Article 311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Article 14 of the Constitution. An attempt was made to . justify the purported differentiation'on the basis of history and ancestry as it were. It was said . that Talatis. and Kotwals who became secretaries, officers and servants of Gram and

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Nagar Panchayats were government servants, even .to start

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SUPREME COURT REPORTS


- with, wbile municipal employees who became such secretaries, officers nnd servants of Gram and Nagar -Panchayats were_ not. Each carried the mark or the 'brand' of his origin and a classification on the . basis of the source from which.· they came into the service~ it was claimed, was permissible.

We .are-cle.ar that it is not. Once they had joined the common . stream of service to perform the same duties; it is clearly not

pemissible to make any classification on the basis of their origin. Such a classification would be unreasonable and entirely .irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Article 311 and Article 14 that the Amending Act is sought to be made retrospective, to bring about. an artificial sitation as if the erstwhile muitici.pal employees never became members of a service under the State. Can a lw be made to destroy today's accrued constitutional rights by artificially reverting to a situation which existed 17 years ago ? No.

The legislation iS pure and simple self-deceptive if we may use such an expres<>i9n with reference to a legislaturemade law. 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 dos and don'ts of the Constitution, neither prospective nor retrospective laws can be niade s~ to contravene fundamental rights .... The law inust satisfy the requirements of the Constitution today taking into account the accrued or

acquire~ rights of the parties today. The law cannot say 29 years ago the parties had_no rights, tfierefore, the require-. ments of the Constitution will be satisfied if the law is dated back by 20 years. w~ are concerned with today's rights and not yel)terday's. A hgislatur~ cannot legislate today with reference to a situation'that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation. of history .. .. _ .. ....... Today's . equals cannot be made unequal by saying that they were unequal 20 years ago and we will restore that position by making a law 'today and making it retrospective. Constitutil)nal rights, constitutional obligations and constituti.onal consequences •

nncit be tampeed with that way. A law which if made toc}ay . .

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• K.C. ARORA v. HARYANA (Misra, J.)

639 , '

would e plainly invalid as offcll4iing constitutional provisions in the context of the existing situation cannot become val, id by being made retrospective. Past virtue (constitutional) cannot.

be made to wipe out prese1,1t vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayafs ·(Third Amendment) Act 1978 i~ . um,; onstitutiorial as it offends Articles 311 and 14 and is arbitrary and unreasonable."

In view of this late.st pronoun-cement by the. ConstitQtion Bench of this Court, the law appears to be well settled and the Haryana Government cannot take away the accrued rights of the petitioners and the appellants by making amendment of tbe rules

with retrospective effect.

For. the foregoing discussion the writ petitions as well as the appeals are allowed and the ordrs of the High Court dated October

10, 1980 are quashed and the impugned rule 4(ii) of the Punjab

Government National Emergency (Concessions) Rules 1965 as-a'lrlen- D ded by the Haryana Government Gazette Notification No.GSR 77/ Const/Art. 309/Amendj(l)/76 dated 22nd f\farch 1976 and the Noti- -~ fication No. GSR. 182/Const/Art. 309/A'rnend/(2)/76 dated '9 August 1976 amending the definition orthe expression 'military service' in . -rule 2 are declared to be ultra vires tlie Constitution in so far as they affect prejud\cially persons who had acquired rights as stated E above. A writ in the Qature of mandamus is issued directing , respondents Nos. 1 and 2 to prepare the S!!n1ority list afresh in the light of the decision of this Court taking into' consideration the military service rendered by the petitioners as well as the appellants.

In the circumstances of the case however there will be no order as to costs. F

S.R.

Appeals & Pet, tions allowed . .

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