Supreme Court of India

S.S. Bhola & Ors vs B.D. Sardana & Ors on 11 July, 1997

PETITIONER:
S.S. BHOLA & ORS.

Vs.

RESPONDENT:
B.D. SARDANA & ORS.

DATE OF JUDGMENT: 11/07/1997

BENCH:
G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T
PATTANAIK, J.

I have gone through the erudite judgment prepared by
Brother Ramaswamy. J. and having given an anxious
consideration to the conclusions arrived at I am in
respectful disagreement with the same. Taking into account
the fact that Brother Ramaswamy, J. would be demiting his
office on 13th of July, 1997, and the short time I have at
my disposal I have not been able to be as elaborate as my
brother. But the two broad features which have persuaded me
to take a contrary view are that the implementation of the
conclusions arrived at by Brother Ramaswamy, J. would lead
to a situation where a direct recruit like Mr. B.D. Sardana
as an Assistant Executive Engineer in the year 1977 would
become senior to the promotees like Shri S.S. Bhola who were
promoted as Executive Engineer way back in 1971 long before
the entry of Mr. Sardana into the services. Further when the
legislatures being aware of the aforesaid gross inequities
and anomalous situation have come forward with a legislation
by enacting an Act and giving it retrospective effect from
the date the State of Haryana came into existence the Court
should try to sustain the Act unless the Act is found to be
repugnant to any of the constitutional provision. With the
aforesaid background I have endeavoured broadly with the
questions that arose for consideration.

These appeals by Special Leave as well as the Transfer
Cases relate to the age old problem in almost all services
i.e. determination of inter-se seniority between the direct
recruits and promotees within a cadre. These cases arise out
of the directions of this Court in two cases, namely,
A.N.
Sehgal and others vs. Raje Ram Sheoran and others
1992 Supp.

(1) Supreme Court
Cases 304 and S.L. Chopra and others vs.
State of Haryana and others
- 1992 Supp. (1) Supreme Court
Cases 391 and the seniority list drawn up by the Government
of Haryana pursuant to the aforesaid direction and the
intervention by the legislators in enacting an Act called
the haryana Service Engineers, Class I, Public Works
Department (Building and Roads Branch), Public Health
Branch) and (Irrigation Branch) Act, 1995 (hereinafter
referred to as "the Act"). Civil appeals nos.
422/93, 423/93
and 424/93, Writ Petition No. 582/95, and Transfer Case No,
44/96 relate to Public Health Branch and the orders passed
by the State Government determining the inter se seniority
in the said Branch. Out of these three Civil Appeals one is
by the State of Haryana and two others are by the promotee
affected officers belonging to the Public Health Branch and
they are aggrieved by the judgment of the Division Bench of
the Punjab and Haryana High Court in Letters Patent Appeal.
Writ Petition No. 582/95 is by direct recruit B.D. Sardana
under
Article 32
of the Constitution challenging the
validity of the Act and praving for direction to grant him
seniority just below the 10 officers who initially
constituted the service when the State of Haryana came into
existence. Transfer Case No. 44/96 had also been filed by
direct recruit in the Punjab and Haryana High Court
challenging the validity of the Act which has been
transferred pursuant to the orders of this Court. Civil
Appeal Nos. 1448-49/93 filed by the State and Civil Appeal
Nos. 1452-53/93 filed by the promotee officers belonging to
the Irrigation Branch are directed against the judgment of
the Division Bench of the Punjab and Haryana High Court in
Letters Patent Appeal which arose out of a Writ Petition
filed by one M.L. Gupta who was directly appointed as an
Assistant Executive Engineer on 27.8.1971. Transfer Case No.
40/96 is the Writ Petition filed by Shri Gupta challenging
the validity of the Act which stood transferred to this
Court pursuant to the orders of this Court. The brief facts
leading to the enactment of the Act may be stated as under:-

The separate State of Haryana came into existence on
1.11.1966. When Punjab and Haryana was one State, the
recruitment and conditions of service of Engineers in the
State was being regulated by Rules framed by the Governor of
Punjab in exercise of powers conferred by proviso under

Article 309
of the Constitution. The set of Rules dealing
with the Engineers of the Public Health Branch was called
"The Punjab Service Engineers, Class I, Public Works
Department (Public Health Branch) Rules 1961. A similar set
of Rules had also been framed by the Governor under Proviso
to
Article 309
of the Constitution for the Engineers
belonging to the Roads and Building Branch called the Punjab
Service of Engineers, Class I, Public Works Department
(Roads and Buildings Branch) Rules, 1960. The provisions of
these two rules are almost identical. A third set of Rules
also had been framed by the Governor for Engineers belonging
to the Irrigation Branch, called "The Punjab Service of
Engineers, Class I. Public Works Department (Irrigation
Branch) Rules. After the formation of the State of Haryana
the Government of Haryana adopted all the aforesaid three
Rules to deal with the service conditions of the Engineers
belonging to the three branches, namely, the Public Health
Branch, the Roads and Buildings Branch and the Irrigation
Branch. The dispute relating to the fixation of seniority of
promotees and direct recruits in the Roads and Buildings
Branch came up for consideration before this Court in the
case of
A.N. Sehgal and others vs. Raje Ram Sheoran and
others
- 1992 Supp (1) Supreme Court Cases 304, and this
Court after thorough analysis of different provisions of the
Rules relating to the Roads and Buildings Branch interpreted
the Rules of seniority and directed the Government of
Haryana to determine the cadre post regularly from time to
time and to issue orders appointing substantively to the
post within the quota and determine the inter se seniority
between the promotees and the direct recruits in the
respective quota cadre post of Executive Engineer.

The
provisions of the Public Health Branch Rules came up for
consideration in the case of
S.L. Chopra & others vs. State
of Haryana and Others
1992 Supp. (1) Supreme Court Cases
391, and the dispute
in that case
also was the determination
of inter se seniority between the direct recruits and the
promotees. This Court also interpreted the relevant
provisions of the Rules for determination of inter se
seniority in the Public Health Branch and directed the State
Government to determine the cadre strength in Haryana
Service of Engineers, Class I, PWD (Public Health Branch)
Rules of the posts of Executive Engineer, Superintending
Engineer and Chief Engineer and consider the cases of the
appellant in the said case as well as the respondents for
promotion to the senior posts of Executive Engineers,
Superintending Engineers and Chief Engineers respectively
with the respective quota of 50 per cent and make
appointment if found eligible and fit for promotion. It may
be stated that the Rules relating to Irrigation Branch which
is slightly different from both the aforesaid Rules, namely,
the Public Health Branch and Roads and Buildings Branch had
never cropped up for consideration. After the aforesaid two
judgments of this Court and pursuant to the directions
issued, the State Government began the exercise of fixing
the cadre strength during each year commencing from 1966 and
also began determination of inter se seniority of the
promotees and direct recruits in the different posts within
the service and also drew up the seniority list of the
employees. The first set of seniority list was drawn up on
6.4.92 and being aggrieved by the said seniority list Writ
Petitions were filed and the Punjab and Haryana High Court
having quashed the same, Special Leave Petitions were filed
in this Court. During the pendency of the Special Leave
Petitions in this Court and prior to the hearing of the
cases two other sets of seniority lists had been drawn up,
one on 13.3.1997 and another on 19.3.97 and strenuous
arguments had been advanced in support of and against the
aforesaid lists drawn up by the Government.

The main attack
to the aforesaid list is that the earlier directions issued
by this Court in
Sehgal
's case (supra) as well as Chopra's
case (supra) have not been duly followed in drawing up the
seniority list.

Subsequent to the judgment of the Punjab and
Haryana High Court striking down the seniority list prepared
by the Government pursuant to the directions of this Court
in
Chopra
's case (supra) the Haryana Legislators enacted the
Act to regulate the recruitment and conditions of service of
persons appointed in all the three branches and the validity
of the said Act had been challenged in the Writ Petitions
filed in Punjab and Haryana High Court.
Those Writ Petitions
have been transferred to this Court and have been numbered
as Transfer case.
Elaborate arguments were advanced by the
counsel for parties challenging the validity of the
aforesaid Act basically on the ground that it seeks to
merely annul the judgment of this Court in
Sehgal
's case
(supra) and in
Chopra
's case (supra) which is not
permissible in law.

It may be stated that if the Act is held
to be valid then necessarily the seniority list drawn up by
the State Government pursuant to the directions of this
Court in
Sehgal
's case (
supra) and Chopra
's case (supra)
will not bold good and a fresh seniority list has to be
drawn up as the Act in question has been given retrospective
effect with effect from the date of the formation of the
State of Haryana in November 1966.

If the Act is held to be
ultra vires then also it has to be examined whether the
seniority list drawn up by the State Government is in
accordance with the earlier direction given by this Court in

Sehgal
's case (
supra) and Chopra
's case (supra) and if not
what further directions are necessary? It is in this context
it must be borne in mind that in the earlier cases only the
principles of determination of inter se seniority between
the direct recruits and the promotees had been considered
and adjudge bet as to how the initial allottees to the
services would be considered there was no adjudication in as
much as that question did not crop up for consideration.

So far as the public health branch is concerned, on the
date of the formation of the State of Haryana 14 persons
were brought from the erstwhile Punjab cadre of Engineers of
constitute the initial cadre in the State of Haryana and
since the cadre strength of the service in Haryana was only
10, four of these persons were adjusted against ex-cadre
post. While bringing persons from the erstwhile Punjab cadre
to Haryana the relevant Rules and the quota of direct
recruit and promotees in the service had not been borne in
mind and officers were brought from the erstwhile Punjab
cadre depending upon the domicile of the employees. In other
words, those who belonged to the Haryana State were brought
over to Haryana cadre and in regulating the cadre strength
the ratio between direct recruits and promotees as per
Recruitment Rules then in force has not been observed. In
the aforesaid premises a question which would arise for
consideration and ultimate decision would be as to how these
10 officers who were brought over from the erstwhile Punjab
State and constituted the initial cadre strength of service
in Haryana would be dealt with? This question had not been
dealt with either in
Sehgal
's case or in Chopra's case
referred to supra. At this stage it would be appropriate to
notice as to what was decided by this Court in Sehgal and
Chopra. Sehgal deals with roads and building branch. In that
case, one, R.R. Sheoran challenged Gradation List and the
seniority assigned to Sehgal and others by filing a writ
petition in Punjab and Haryana High Court. The Division
Bench of the High Court came to hold that Sheoran was a
member of the service from the date of his initial
appointment as Assistant Executive Engineer whereas Sehgal
and others who were promoted were not members of the
service. This decision was challenged by Sehgal, a promotee
officer and it was agreed between the parties that this
Court would decide the principles on consideration of the
Rules and leave the matter for the State Government to
determine the inter se seniority by applying the law. The
Court considered Rule 3(1), Rule 3(2), Rule 5(1)(a), Rules 6
and 7, Rule 11(1), Rule 12(3) and sub-rule (12) of Rule 2.
This Court came to the conclusion that a direct recruit
would always be recruited and appointed to a substantive
vacancy and from the date he starts discharging the duty
attached to the post he is a member of the service subject
to his successfully completing the probation and declaration
thereof at a later date and this appointment related back to
the date of initial appointment, subject to his being
discharged from service on failure to complete the probation
within or extended period or termination of the service
according to rules. So far as a promotee is concerned it was
held that a promotee would have initial officiating
promotion to a temporary vacancy or substantive vacancy and
on successful completion and declaration of the probation,
unless reverted to lower posts, he awaits appointment to a
substantive vacancy. Only on appointment to a substantive
vacancy he becomes a member of the service. It was also held
that a direct recruit appointed to an ex-cadre post alone is
a member of the service even while on probation and Rule
2(12)(a) applies to them and it does not apply to a promotee
from Class II service. This Court also held:

"on a conjoint reading of Rules
12(3) and 12(5) it is clear that
the year of allotment of the
Assistant Executive Engineer in the
post of Executive Engineer, shall
be the calendar year in which the
order of appointment as Assistant
Executive Engineer had been made.
Thus his seniority as Executive
Engineer, by fiction of law, would
relate back to his date of initial
appointment as Assistant Executive
Engineer and in juxtaposition to
Class II officers' seniority as
Executive Engineer is unalterable".

Since Shri Sheoran was appointed as an Assistant
Executive Engineer on August 30, 1971, it was directed that
his seniority as Executive Engineer shall accordingly be
reckoned. While interpreting Rule 5(2) and proviso thereto
it was held that the intendment appears to be that so long
as the direct recruit Assistant Executive Engineer, eligible
and considered fit for promotion is not available, the
promotee from Class II service in excess of the quota is
eligible to occupy in officiating capacity the senior posts,
i.e., Executive Engineers and above. The moment direct
recruits are available, they alone are entitled to occupy 50
per cent of their quota posts and the promotees shall give
place to the direct recruits. On the question what is the
date from which the seniority of a promotee as Executive
Engineer shall be reckoned, the Court held that a promotee
within quota under Rule 5(2) gets his seniority from the
initial date of his promotion and the year of allotment, as
contemplated in Rule 12(6) shall be the next below `the
juniormost officer in the service whether officiating or
confirmed as Executive Engineer before the former's
appointment' counting the entire officiating period towards
seniority, unless there is break in the service or from the
date of later promotion. Such promotee, by necessary
implication, would normally become senior to the direct
recruit promoted later. Combined operation of sub-rules (3)
to (5) of Rule 12 makes the direct recruit a member of the
service of Executive Engineer from the date of year of
allotment as an Assistant Executive Engineer. The result is
that the promotee occupying the posts within 50 per cent
quota of the direct recruits, acquired no right to the post
and should yield to direct recruit, though promoted later to
him, to the senior scale posts i.e., Executive Engineer,
Superintending Engineer and Chief Engineer. The promotee has
right to confirmation in the cadre post as per Rule 11(4) if
a post is available to him within his quota or at a later
date under Rule 5(2) read with Rule 11(4) and gets
appointment under Section 8(11). His seniority would be
reckoned only from the date of the availability of the post
and the year of allotment, he shall be next below to his
immediate senior promotee to that year or the juniormost of
the previous year of allotment whether officiating or
permanent occupying the post within 50 per cent quota. The
officiating period of the promotee between the dates of
initial promotion and the date of the availability of the
cadre post would thus be rendered fortuitous and stands
excluded. A direct recruit on promotion within the quota,
though later to the promotee is interposed in between the
periods and interjects the promotee's seniority's snaps the
links in the chain of continuity and steals a march over the
approved promotee probationer. Harmonious construction of
Rules 2(1), 2(2), 2(7), 2(10), 2(12), 2(12)(a), 5(2)(a), 8,
9(2), 11, 12(3), 12(5) to 12(7) would yield to the above
result, lest the legislative animation would be defeated and
the rules would be rendered otiose and surplus. It would
also adversely affect the morale and efficiency of the
service. Mere officiating appointment by promotion to a
cadre post outside the quota; continuous officiating therein
and declaration of probation would not clothe the promotee
with any right to claim seniority over the direct recruits.
The necessary conclusion would, therefore, be that the
direct recruits shall get his seniority with effect from
the date of the year of the allotment as Assistant Executive
Engineer which is not alterable. Whereas the promotee would
get his seniority w.e.f. the date of the availability of the
posts within 50 per cent quota of the promotees. The year of
allotment is variable and the seniority shall be reckoned
accordingly. Appointment to the cadre post substantively and
confirmation thereof shall be made under Rule 8(11) read
with Rule 11(4) of the Rules. A promotee Executive Engineer
would only then become member of the service. `Appointed
substantively' within the meaning of the Rule 2(12)(a) shall
be construed accordingly. We, further hold that the
seniority of the promotee from Class II service as Executive
Engineer shall be determined with effect from the date on
which the cadre post was available to him and the seniority
shall be determined accordingly." Ultimately this Court
directed the Government of Haryana to determine the cadre
posts, if not already done, regularly from time to time
including the post created due to exigencies of service in
terms of Rule 3(2) read with Appendix `A' and allot the
posts in each year of allotment as contemplated under Rule
12 read with Rule 5(2)(a) and issue orders appointing
substantively to the respective posts within the quota and
determine the inter se seniority between the appellants
therein who were promotees and Sheoran, direct recruits in
the respective quota cadre posts of Executive Engineer. The
Court also held that the inter se seniority of the direct
recruits and promotees shall be determined in accordance
with the principles laid down.

In
S.L. Chopra
's case, which deals with Public Health
Branch, this Court held that direct recruits get seniority
from the date of appointment as Assistant Executive Engineer
and it is unalterable. But the promotee's seniority is
variable by operation Rules 8(11) and 11(4); 2(12)(a) and
5(2) of the Rules. The State Government was accordingly
directed to determine the cadre strength in the Haryana
Service of Engineers, Class I PWD (Public Health Branch)
under the rules, Executive Engineers, Superintending
Engineers and Chief Engineers and consider the cases of the
appellants therein as well as the contesting respondents
B.D. Sardana, F.L. Kansal for promotion to the senior posts
of Executive Engineers, Superintending Engineers and Chief
Engineers respectively with the respective quota of 50 per
cent and make appointment if found eligible and fit for
promotion. In the said case the appellant was a promotee
and the respondents were direct recruits.

The seniority list which was drawn up on 6.4.92 assumed
that out of ten incumbents who originally constituted the
service in the Public Health Branch five have to be treated
as directed recruits fictionally under Rules 5(3) and 5 as
promotees so that the disparity in the ratio will not
influence the future promotion. The seniority list which was
drawn up on 19.3.97 took the ten incumbents originally
constituted service belonging to the quota of promotees
since factually all of them were promotees under the Punjab
Rules and then determined the inter se seniority of direct
recruits and the promotees by application of law
laid down
by
this Court in
Sehgal
's case (
supra) and Chopra
's case
(supra).

In course of his submissions, Mr. Tulsi appearing for
the State demonstrated that the Seniority List which was
drawn up on 19.3.77 topsy turbid the position to such an
extent that a direct recruit as Assistant Executive Engineer
who was not even born on the cadre when a promotee had been
appointed as the Executive Engineer, such direct recruit
became senior to the promotee Executive Engineer. Such gross
inequity which was resulted on account of giving effect to
the Rules in force and interpreted by this Court in Sehgal
and Chopra persuaded the legislature to intervene by
enacting the Act and giving it retrospective effect.

Let us now examine the validity of the Act itself which
was challenged by the direct recruits in filing writ
petitions in the High Court of Punjab and Haryana and those
writ petitions stood transferred to this Court. Mr. Sachar,
the leaned counsel appearing for the writ petitioners -
direct recruits contended that the Act is nothing but an
usurpation of judicial power by the legislature to annual
the judgments of this Court in Sehgal and Chopra and it
merely declares the earlier judgments to be invalid without
anything more and as such is invalid and inoperative.
Further the Act takes away the rights accrued in favour of
the direct recruits pursuance to the judgments of this Court
in Sehgal and Chopra and consequently the Act must be struck
down. The learned counsel also urged that the mandamus
issued by this Court in Sehgal and Chopra has to be complied
with and the State Legislature has no power to make the
mandamus ineffective by enacting an Act to override the
judgment of this Court which tantamounts to a direct in-road
into the sphere occupied by judiciary and consequently the
Act has to be struck down. This argument of Mr. Sachar was
also supported by Mr. Mahabir Singh, the learned counsel
appearing for the petitioners in T.P. (Civil) No. 46 of 1997
in his written submissions and it was urged that in any view
of the matter the legislatures could not have given
retrospective operation to the Act itself with reference to
a situation that was in existence 25 years ago and such an
act of the legislature must be held to be invalid as was
held by this Court in the case of
STATE OF GUJARAT AND
ANOTHER VS. RAMAN LAL KESHAV LAL SONI AND OTHERS
. (1983) 2
S.C.C. 33. In elaborating the contention that the Act merely
purports to override the judgment of this Court in Sehgal
and Chopra the learned counsel referred to the Objects and
Reasons of the Act as well as the affidavit filed on behalf
of the State Government which would unequivocally indicate
that the Act was enacted to get over the judgments of this
Court in Sehgal and Chopra.

Mr. K.T.S. Tulsi, the learned senior counsel for the
State of Haryana and Mr. D.D. Thakur and Dr. Rajeev Dhawan,
learned senior counsel appearing for the promotee
respondents on the other hand contended that the power of
the State Legislature under
Articles 245
and
of the
Constitution is wide enough to make law determining the
service conditions of the employees of the State and it is
undisputed position of law that the legislature can make law
giving it retrospective effect. According to the learned
counsel the legislature having been aware of the inequities
situation which have been the result of the Rules which were
operating for determination of the inter se seniority
between the direct recruits and the promotees as interpreted
by this Court in Sehgal and Chopra, intervened in enacting
the Act to remove the aforesaid inequities not by merely
declaring the interpretation given by this Court to the
relevant provisions of the Rules in Sehgal and Chopra to be
invalid but by making substantial alterations and changes to
the basis itself and as such the legislatures cannot be said
to have encroached upon the field of judiciary nor the
legislation can be held to be an act of usurpation of the
judiciary nor the legislation can be held to be an act of
usurpation of judicial power by the legislatures. According
to the learned counsel the basic changes made in the Act are
by altering the definition of service by addition of sub-
clause (c), by providing the quota of promotees could exceed
beyond 50% as per proviso to Section 5(2) and by changing
the very criteria for determination of seniority namely the
continuous length of service as engrafted in Section 12(2)
and these changes having been made and the legislative
competence not having been assailed, the Act must be held to
be valid piece of legislation. It was also contended by the
learned counsel that in deciding the constitutionality of
the Act the Court can look into the Objects and Reasons of
the Act only when there is ambiguity in the substantive
provisions of the Act itself, but where there is no
ambiguity in the language of the Act which declares the
intention of the legislature, the Court would not be
justified in looking to the Objects and Reasons for the
enactment or the affidavit filed by the State Government to
hold that the legislatures have usurped the judicial power
and have enacted the Act merely to get over the judgments of
this Court and mandamus issued by this Court in Sehgal and
Chopra. According to the learned counsel in enacting the Act
the legislature has taken into account the needs of the
administration and laid down the principles for determining
the inter se seniority in consonance with the accepted norms
of service jurisprudence namely determination of seniority
on the basis of length of continuous service in the cadre
which was also observed by this Court in the two earlier
cases while interpreting the Rules of 1961 which was
operative in determination of inter se seniority of the
employees. The learned counsel further urged that no vested
right of any employee has been taken away by the Act
inasmuch as to obtain a particular position in the seniority
list within a cadre is neither a vested right of an employee
nor can be said to be fundamental right under Part - III of
the Constitution. Mr. Tulsi, learned counsel appearing for
the State of Haryana in this context said that by operation
of the Act no employee whether a direct recruit or a
promotee would be reverted to any lower post from the post
to which promotion has already been made even if he is found
to be junior to others in the rank of Executive Engineer and
as such the contention of Mr. Sachar and Mr. Mahabir Singh
that it takes away a vested right of the employees is
incorrect in law. Lastly, it was contended that the
legislative competence having been conceded and the Act not
having been found to be contrary to any of the fundamental
rights under Part - III of the Constitution the only
question that requires consideration is whether it
tantamounts to usurpation of judicial power by the
legislature and for the contentions already advanced the Act
not being one merely declaring a law
laid down by
this Court
to be invalid, there has been no usurpation of judicial
power, and therefore, the same is a valid piece of
legislation determining the service conditions of the
employees in the State of Haryana and this Court will not be
justified in holding the Act to be invalid. A large number
of authorities were cited at the Bar in support of their
respective contentions which we will notice while examining
the correctness of the rival submissions.

At the outset it must be borne in mind that in the case
of
Sehgal
(supra) as well as
Chopra
(supra) this Court had
not invalidated any provisions of the recruitment rules but
merely interpreted some provisions of the Rules for
determining the inter se seniority between the direct
recruits and the promotees. The Act passed by the
legislature, therefore, is not a validation Act but merely
an Act passed by the State Legislature giving it
retrospective effect from the date the State of Haryana came
into existence and consequently from the date the service in
question came into existence. The power of the legislature
under
Article 246(3)
of the Constitution to make law for the
State with respect to the matters enumerated in List II of
the VIIth Schedule to the Constitution is wide enough to
make law determining the service conditions of the employees
of the State. In the case in hand there has been no
challenge to the legislative competence of the State
legislature to enact the legislation in question and in our
view rightly, nor there has been any challenge on the ground
of contravention of Part III of the Constitution. Under the
constitutional scheme the power of the legislature to make
law is paramount subject to the field of legislation as
enumerated in the Entries in different Lists. The function
of the judiciary is to interpret the law and to adjudicate
the rights of the parties in accordance with law made by the
legislature. When a particular Rule or the Act is
interpreted by a Court of law in a specified manner and the
law making authority forms the opinion that such an
interpretation would adversely effect the rights of the
parties and would be grossly inequitious and accordingly a
new set of Rule or Law is enacted, it is very often
challenged as in the present case on the ground that the
legislatures have usurped the judicial power. In such a case
the Court has a delicated function to examine the new set of
laws enacted by the legislatures and to find out whether in
fact the legislatures have exercised the legislative power
by merely declaring an earlier judicial decision to be
invalid and ineffective or the legislatures have altered and
changed the character of the legislation which ultimately
may render the judicial decision ineffective.

It cannot be
disputed that the legislatures can always render a judicial
decision ineffective by enacting valid law on the topic
within its legislative field fundamentally altering or
changing its character retrospectively as was held by this
Court in the case of
Indian Aluminum Company vs. The State
of Kerala
(1996) 7 Supreme Court Cases 637. What is really
prohibited is that legislature cannot in exercise of its
plenary power under
Article 245
and
of the Constitution
merely declare a decision of a Court of Law to be invalid or
to be inoperative in which case it would be held to be an
exercise of judicial power. Undoubtedly under the scheme of
Constitution the legislature do not possess the same.
Bearing in mind the aforesaid principles it is necessary to
examine the legality of the Act in question. If we do not
examine the substantive provisions of the Act and merely go
by the object and reasons as given for the enactment of the
Act as well as the counter affidavit field on behalf of the
State then the Act would be possibly held to be an intrusion
to the judicial sphere by the legislature. The Statements of
Objects and Reasons while introducing the Bill in Haryana
Vidhan Sabha is extracted herein below in extenso:-

"There was separate rules
regulating service conditions and
fixation of seniority in the
Engineering Services in P.W.D., B &
R., Public Health and PWD
Irrigation Branch. These rules
although different for the three
branches were on identical lines
with minor variations. These rules
have been interpreted in the
Supreme Court in the case of
A.N.
Sehgal versus R.R. Sheoran
and S.L.
Chopra versus B.D. Sardana.

Subsequently, the judgment has been
interpreted further in the case of

A.N. Sehgal versus R.R. Sheoran
by
an order dated 31st March, 1995 of
the Supreme Court in a Contempt
Petition filed by Shri R.R.
Sheoran.

In the Public Health side,
the seniority list prepared under
the directions of the Supreme Court
in S.L. Chopra versus B.D.
Sardana's case was challenged in
the High Court which struck down
the list., Thereafter, an appeal
was filed by the State in the
Supreme Court against the order of
the High Court in the case of
State
versus B.D. Sardana
. The appeal was
admitted by the Supreme Court and
the operative portion of the
judgment of the High Court was
stayed. The matter is pending for
final decision in the Supreme
Court, and mean while the seniority
list prepared by the State is being
operated by Public Health Branch.

2. Meanwhile, consequent to the
directions given by the Supreme
Court in the case of
A.N. Sehgal
vs. R.R. Sheoran
and orders of the
Supreme Court dated 31st March,
1995 in the Contempt Petition filed
by R.R. Sheoran subsequently the
seniority list had to be redrawn in
the case of B & R Branch, which was
totally at variance with the
manner in which the seniority was
drawn up in the case of Public
Health Branch. Thus, the directions
of the Supreme Court in the case of
B & R Branch had created a lot of
Administrative problems with
certain very junior officers
getting undue seniority and
becoming senior to the officers
under whom they were previously
working. The naturally resulted in
sever groupism and tension between
officers of the department in their
day today working.

3. In order to have uniform rules
for all three branches of
Engineering services and to clarify
the position in an unambiguous
manner so as to have uniformity and
clarity in interpretation, it
became necessary to make certain
amendments with retrospective
effect. This was possible only by
enacting a legislation in this
regard. As the Haryana Vidhan Sabha
was no in Session, it was decided
to achieve the purpose through
issue of an Ordinance on 13th May,
1995. The Ordinance replaced the
existing rules for all the three
branches of the PWD and the common
enactment was to govern the service
matters of Class-I service B & R
Branch, Public Health Branch and
Irrigation Branch."

The relevant portion of the affidavit of Shri S.N.
Tanwar, Joint Secretary to the Government of Haryana filed
in the Punjab and Haryana High Court indicating the ground
which impelled the legislature to enact the legislation in
question may be extracted hereinunder:-

"This interpretation by the Hon'ble Supreme Court has
caused great hardships to the promotees. In order to remove
this hardship to the promotees an Ordinance was issued on

13.5.1995 which has now become an Act No. 20 of 1995 after
assent of the Governor of Haryana on 30.11.1995. If this
Ordinance/Act is not issued the net result of the Order of
the Hon'ble Supreme Court would be that the directly
recruited Assistant Executive Engineer would be considered
to be Executive Engineer from the date he was recruited as
Assistant Executive Engineer. The interpretation of the
judgment of the Supreme Court create such a situation that
persons who were promotees and were working as Executive
Engineer years before even the Assistant Executive Engineers
were recruited became junior to the latter when the latter
was promoted as Executive Engineer. This w as somehow
considered by the Government to be very seriously hampering
proper working of the department. Giving such a seniority to
a person recruited as Assistant Executive Engineer have
effected adversely the effective working of the department
because the persons who are occupying the posts much higher
to the Executive Engineer and above could became junior to
Assistant Executive Engineer who is recruited even after the
promotees have been discharging their duties on these higher
posts. If such a situation will continue to prevail the
promotees will not be able to working that capacity when
they would considered to be junior to the persons who were
recruited to Class I service much later than their
promotions. Moreover, the Government of Haryana always
considered that the Assistant Executive Engineer directly
recruited would deem to be having a seniority from the date
when he is actually promoted as Executive Engineer. Since
the Supreme Court did not accept this interpretation it
became essential for the Government of Haryana inter alia
for the reasons mentioned above to issue this Act
retrospectively."

If these materials are alone considered then one may be
persuaded to accept the submission of Mr. Sachhar, the
learned senior counsel appearing for the direct recruits -
Writ Petitioners, that the Act in question was merely to
declare the earlier decisions of this Court in
Sehgal

(supra) and in
Chopra
(supra) a invalid and as such is
usurpation of the judicial power by the legislature. But it
is a cardinal rule of interpretation that Objects and
Reasons of a statue is to be look into as an extrinsic aid
to find out legislative intent only when the meaning of the
statute by its ordinary language is obscure or ambiguous.
But if the words used in a statue are clear and unambiguous
then the statue itself declares the intention of the
legislature and in such a case it would not be permissible
for a Court to interpret the Statute by examining the
Objects the Reasons for the Statute question.

In the case of
ASWINI KUMAR GHOSH AND VS. ARABINDA BOSE
AND ANOTHER
, S.C.R. (1953) 1, Patanjali Sastri, J., speaking
for the majority of the Court, emphatically ruled out the
Objects and Reasons appended to a Bill an aid to the
construction of a statute. It was observed:

"As regards the propriety of the
reference to the Statement of
Objects and Reasons, it must be
remembered that it seeks only to
explain what reasons induced the
mover to introduce the Bill in the
House and what objects he sought to
achieve. But those objects and
reasons may or may not correspond
to the objective which the majority
of members had in view when they
passed it into law. The Bill may
have undergone radical changes
during its passage through the
House or Houses, and there is no
guarantee that the reasons which
led to its introduction and the
objects thereby sought to be
achieved have remained the same
throughout till the Bill emerges
from the House as an Act of the
Legislature, for they do not form
part of the Bill and are not voted
upon by members. We, therefore,
consider that the Statement of
Objects and Reasons appended to the
Bill should be ruled out as an aid
to the construction of the
statute."

In the case of
THE CENTRAL BANK OF INDIA VS. THEIR
WORKMEN
. S.C.R. (1960) 200, S.K. DAS, J., reiterated the
principle:

"The Statement of Objects and
Reasons is not admissible, however,
for construing the section far less
can it control the actual words
used".

Sinha, J., in the case of
STATE OF WEST BENGAL VS.
UNION OF INDIA, S.C.R.
(1) (1964) 371 held:-

"It is well settled that the
Statement of Objects and Reasons
accompanying a Bill, when
introduced in Parliament cannot be
used to determine the true meaning
and effect of the substantive
provisions of the statute. They
cannot be used except for the
limited purpose of understanding
the background and the antecedent
state of affairs leading up to the
legislation".

In the case of
TATA ENGINEERING AND LOCOMOTIVE CO. LTD.
VS. GRAM PANCHAYAT, PIMPRI WAGHERE
, (1976) 4 SCC 177, this
Court did not accept the recital in the Statement of Objects
and Reasons that the amendment was made for the reason that
the Panchayats could not levy tax on buildings and held that
the word `houses' as originally used was comprehensive
enough to include all buildings including factory buildings
and that the amendment only made explicit what was
implicit".

The general rule of interpretation is that the language
employed is primarily the determining factor to find out the
intention of the legislature. Gajendragadker, J. as he then
was in the case of
KANAI LAL SUR VS. PARAMNIDHI SADHUKHAN,
S.C.R.
1958 360 had observed that "the first and primary
rule of construction is that he intention of the legislature
must be found in the words used by the legislature itself".

In the case of ROBERT WIGRAM CRAWFORD VS. RICHARD SPOONER, 4
MIA 179 (PC) p. 1987 Lord Brougham had stated thus "If the
legislature did intend that which it has not expressed
clearly; much more if the legislature intended something
very different; if the legislature intended pretty nearly
the opposite of what is said, it is not for judges to invent
something which they do not meet within the words of the
text". Thus when the plain meaning of the words used in a
statute indicate a particular state of affairs the courts
are not required to get themselves busy with the "supposed
intention" or with "the policy underlying the statute" or to
refer the objects and reasons which was accompanied the Bill
while introducing the same on the floor of the legislation.
It is only when the plain meaning of the words used in the
statute creates an ambiguity then it may be permissible to
have the extrinsic aid of looking to the Statement of
Objects and Reasons for ascertaining the true intention of
the legislatures. In the aforesaid state affairs to find out
whether the impugned Act is a usurpation of judicial power
by the legislature it would not be permissible to look to
the Statement of Objects and Reasons which accompanied the
Bill while introducing the same on the floor of the
legislation nor the affidavit filed by an officer of the
Government would control the true and correct meaning of the
words of the statute. It would, therefore, be necessary to
examine the Act itself and the changes brought about by the
Act and the consequences thereof in relation to the
decisions of this Court in Sehgal and Chopra interpreting
the Rules of seniority which were in force and which stood
repealed by the Act itself.

The Preamble of the Act which is a key to the enactment
clearly indicates that it is an act for consolidation of
ruled relating to different Branches. It reads thus:-

"to regulate the recruitment and
conditions of service of persons
appointed to the Haryana Service of
Engineers, Class I, Public Works
Department (Building and Roads
Branch), (Public Health Branch) and
(Irrigation Branch) respectively."

A comparative study of the provisions of the 1961 Rules
framed by the Governor in exercise of power under the
proviso to
Article 309
of the Constitution and 1995 Act
passed by the Haryana Legislature indicate the following
changes which have been brought about by the Act:

(a) The definition of member of
service in Rule 2(12) of 1961 rules
has been amended. Sub-clause (c)
has been inserted in Clause 12 of
Section 2 of 1995 Act by which an
officer awaiting appointment to a
cadre post has been made a member
of service.

(b) A proviso has been added to
Section 5(2) of 1995 Act which
expressly provides for exceeding
the quota of 50% of officers
promoted to the post of Executive
Engineers in the event, adequate
number of Assistant Executive
Engineers are not available.

(c) The percentage of quota has
been altered from 50% to 75% in the
case of Irrigation Branch by
incorporating a second proviso to
Section 5(2) of the Act.

(d) The rule with regard to
determination of seniority has been
completely changed from the one
that existed in 1961 rules. While
under the 1961 rules, according to
Rule 12, no member of service could
enjoy the benefit of service except
in accordance with the quota
prescribed under Rule <??> under
Clause 2 of Section 12 of the Act,
length of continuous service for
the post of executive engineers,
has been made the sole determining
factor for the fixation of
seniority."

The aforesaid changes and alterations in the Act itself
and giving it retrospective effect w.e.f. the date when the
State of Haryana came into existence and consequently the
service of engineers came into existence, rendered the
earlier decisions of this Court in Sehgal and Chopra
ineffective. The provisions of the Act and the definition of
"service" in Section 2(12)(c), proviso to Section 5(2) and
the criteria for promotion which was engrafted in Section
12(2) and making it retrospective w.e.f. 1.11.1966, when
interpreted lead to the only conclusion that this Court
could not have rendered the decision in Sehgal and Chopra on
the face of the aforesaid provisions of the Act. It is,
therefore, not a case of legislature by mere declaration
without anything more overriding a judicial decision but a
case of rendering a judicial decision ineffective by
enacting a valid law within the legislative field of the
legislature. It would be appropriate to extract a passage
from the judgment of this Court in
INDIAN ALUMINIUM CO. AND
OTHERS VS. STATE OF KERALA AND OTHERS
, (1996) 7 S.C.C. 637,
to which two of us were parties (Ramaswamy. J. and
Pattanaik, J.):

"In a democracy governed by rule of
law, the legislature exercises the
power under
Articles 245
and
and other companion articles read
with the entries in the respective
lists in the Seventh Schedule to
make the law which includes power
to amend the law. Courts in their
concern and endeavour to preserve
judicial power equally must be
guarded to maintain the delicate
balance devised by the Constitution
between the three sovereign
functionaries. In order that rule
of law permeates of fulfil
constitutional objectives of
establishing an egalitarian social
order, the respective sovereign
functionaries need free play in
their joints so that the march of
social progress and order remains
unimpeded. The smooth balance built
with delicacy must always be
maintained. In its anxiety to
safeguard judicial power, it is
unnecessary to be overzealous and
conjure up incursion into the
judicial preserve invalidating the
valid law competently made."

It would be appropriate now to examine the different
citations made at the Bar. Mr. Sachar, the learned senior
counsel in support of his contention that the impugned
judgment is essentially a usurpation of the judicial power
by the legislature relied upon the decisions of this Court
in
B.S. Yadav and others vs. State of Haryana & others
and

Pritpal Singh and others vs. State of Punjab and Others
-
1980 (Supp.) Supreme Court Cases 524, State of Gujarat &
Another etc. vs. Raman Lal Keshav Lal Soni and others etc. -
(1983) 2 Supreme Court Cases 33, Ex. Capt.

K.C. Arora and
Another vs. State of Haryana and Others
.

- (1984) 3 Supreme
Court
Cases 281, T.R. Kapur and others vs. State of Haryana
and others
1986 (Supp) Supreme Court Cases 584, P.D.
Aggarwal and others vs. State of U.P. and others - (1987) 3
Supreme Court Cases 622, Madan Mohan Pathak and Another etc.
vs. Union of India and others - (1978) 2 Supreme Court Cases

50. In B.S. Yadav's case (supra) the question for
consideration before this Court was whether Governor could
frame rules relating to conditions of service of judicial
officers, and if so, then whether such rule contravenes

Article 235
of the Constitution? This Court held that a
combined reading of
Article 309
and
Article 235
would lead
to the conclusion that though the legislature or the
Governor has the power to make Rules regulating the
recruitment and the conditions of service of judicial
officers of the State and thereby regulate seniority of
judicial officers by laying down rules of general
application, but that power cannot be exercised in a manner
which will lead to interference with the control vested in
the High Court by the first part of
Article 235.
In
paragraph 76 of the judgment of Court examined the amended
rule and the retrospectively of the same and held that since
the Governor exercises the legislative power under the
proviso to
Article 309
of the Constitution, it is open to
him to give retrospective 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 and no
nexus is shown in the present case on behalf of the State
Government. On the aforesaid reasonings the Court came to
the conclusion that the retrospective effect that was given
to the rules is bad in law. In the said case neither this
Court examined the question of legislature in-validating a
decision of a competent Court of law nor the question
whether there has been any intrusion by the legislature into
the judicial sphere. We fail to understand how this case is
of any assistance to the petitioners in the Writ Petitions
challenging the validity of the Act.

In
Raman Lal
's case (supra) the employees of the
Panchayat Services filed a Writ Petition in Gujarat High
Court claiming that they are entitled to the benefit of
revision of scales of pay which were made on the basis of
the recommendation of the Pay Commission. The State of
Gujarat resisted those petitions on the ground that the
members of the Panchayat Service were not government
servants and, therefore, they are not entitled to claim the
relief asked for. The High Court of Gujarat allowed the Writ
Petition on coming to the conclusion that the members of the
Panchayat Service belonging to the local cadre were
government servants and directed the State Government to
make suitable orders under Gujarat Panchayat Service
(Absorption, seniority, pay and allowance) Rules, 1965 and
several other directions to fix the pay scales and allowance
and other conditions of service of those employees in par
with the State Government servants. The State had filed
appeal against
the said judgment
in the Supreme Court and
during the pendency of the appeal an Ordinance was passed
which was later on replaced by the Act. The constitutional
validity of the amending Act was challenged by filing the
Writ Petition by the ex-Municipal employees who were
included in the local cadre. This Court came to the
conclusion that the Panchayat Service constituted under
Section 203 of the Gujarat Panchayat's Act is a Civil
Service of the State and the members of the service are
government servants. The Court, however, examined the
validity of the
Amending Act
and came to the conclusion that
before the
Amending Act
was passed the employees who had
been allocated to the Panchayat Service had achieved the
status of government servants under the provisions of the
principal Act of 1961 and that status as government servant
cannot be extinguished so long as the posts are not
abolished and their services were not terminated in
accordance what the provisions of
Article 311
of the
Constitution. It is in this context it was observed:-

"The legislation is pure and
simple, self-deceptive, if we may
use such an expression with
reference to a legislature-made
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 to have conform
to the dos 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,
20 years ago the parties had no
rights, therefore, the requirements
of the Constitution will be
satisfied if the law is dated back
by 20 years. We are concerned with
today's rights and not yesterday's.
A legislature 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."

Thus the Amending Act was held to have offended the
constitutional provisions of
Article 14
and
Article 311
and,
therefore, was struck down.

Thus is Raman Lal, the amending Act had the effect of
depriving the ex-Municipal employees of their status of
membership under the State without any option to them which
was considered to be unconstitutional. In the case in hand
the impugned Act and its retrospectivity merely alters the
seniority within a cadre and such an alteration neither
contravenes any constitutional provision nor it affects any
right under Part - III of the Constitution. In this view of
the matter the aforesaid decision is of no assistance to the
direct recruit petitioners who have assailed the legality of
the Act.
In
K.C. ARORA
's case, (1984) 3 S.C.C. 281 the
amended provisions being given retrospective effect was
found to have affected the accrued fundamental rights of the
parties.

Following the earlier judgment of this Court in

STATE OF GUJARAT vs. RAMAN LAL KESHAV LAL SONI
, (1983) 2 SCC
33, this Court held that the Government cannot take away the
accrued rights of the petitioners and the appellants, by
making amendment to the rules with retrospective effect. In
the aforesaid case under the rules in force the seniority
had been determined by counting the period military service.
Under the amended rules by giving it retrospective effect
the aforesaid benefit had been taken away. This Court,
therefore, held that in view of the rules in force and the
assurances given by the Government the accrued right of
considering the military service towards seniority cannot be
retrospectively taken away. In the case in hand no such
accrued rights of the direct recruits are being taken away
by the Act. On the other hand on account of gross
inequitious situation the legislatures have enacted an Act
in consonance with the normal service jurisprudence of
determining the seniority on the basis of continuous length
of service in a cadre. The aforesaid decision, therefore,
cannot be said to be a decision in support of the contention
that legislature have usurped the judicial power nor is it a
decision in support of the contention that by the impugned
Act any fundamental rights of the direct recruits have been
infringed.

In the case of
T.R. KAPUR AND OTHER vs. STATE OF
HARYANA AND OTHERS
, 1986 (supp) SCC 584, when the validity
of Punjab Service of Engineers, Class I, PWD (Irrigation
branch) Rules, 1964 as amended by State of Haryana by
notification dated June 22, 1984 came up for consideration
this Court found that the said rule is violative of
Section
82(6)
of the Punjab Reorganisation Act, 1966, as the prior
approval of the Central Government had not been taken. On
the question of power of the Governor of frame Rules under
proviso to
Article 309
and to give it retrospective effect
the Court held that though the rules can be amended
retrospectively but any benefit accrued under existing rule
cannot be taken away. In other words a promotion which has
already been held in accordance with the rules in force
cannot be nullified by the amended rules by fixing an
additional qualification for promotion. By the impugned Act
the Haryana Legislatures have not purported to nullify and
promotion already made under the 1961 Rules which was in
force prior to being repealed by the impugned Act. Even Mr.
Tulsi, appearing for the State, submitted that no promotion
already made under the pre-amended rules will be altered in
any manner by giving effect to the provisions of the Act. In
this view of the matter, the aforesaid decision is also of
no assistance to the direct recruits.

In
MADAN MOHAN PATHAK
AND ANOTHER vs. UNION OF INDIA AND OTHERS
, (1978) 2 SCC 50,
a seven Judge Bench of this Court considered the question of
the power of the legislature to annual a judgment of the
court giving effect to rights of a party. There has ben some
observations in the aforesaid case which may support the
contention of Mr. Sachar inasmuch as this Court observed
that the rights which had passed into those embodied in a
judgment and become the basis of a mandamus from the High
Court could not be taken away in an indirect fashion. The
main plank of Mr. Sachar's argument is that after the
judgment of this Court in Sehgal and Chopra interpreting the
rules of seniority between the direct recruits and
promotees, the direction of this Court to re-draw the
seniority list according to the principle
laid down by
this
Court has been taken away by the enactment of the
legislature and thus there has been an in-road of the
legislature into the judicial sphere. But a deeper scrutiny
of the decision of this Court in Pathak will not sustain the
arguments advanced by Mr. Sachar.

In
Pathak
's case in
accordance with Regulation 58 a settlement had been arrived
at for payment of bonus to Class III and Class IV employees
on 24th of January, 1974 and the said settlement had been
approved by the Central Government. Notwithstanding the
settlement when the Life Insurance Corporation did not pay
bonus, the employees approached the Calcutta High Court. The
High Court, therefore, issued a writ of mandamus on 21st of
May, 1976 calling upon the Life Insurance Corporation to pay
the bonus in accordance with the settlement in question.
Against the judgment of the learned Single Judge a Letters
Patent Appeal was preferred and while the said appeal was
pending, the Life Insurance Corporation (Modification of
Settlement) Act, 1976 came into force on 29th of May, 1976
and
Section 3
thereof purported to nullify the judgment of
the Calcutta High Court by the non-obstante clause in
relation to provisions of
Industrial Disputes Act
. In other
words the Calcutta High Court while issuing mandamus had
held the settlement has a binding effect once approved by
the Central Government and the same cannot be rescinded. But
the impugned Act purported to nullify the rights of the
employees working under Class III and Class IV to get annual
cash bonus in terms of such settlement. It is in this
context in the majority judgment of the Court delivered by
Bhagwati, J., it was observed:

"that the judgment given by the
Calcutta High Court is not merely a
declaratory judgment holding an
impost or tax to be invalid so that
t validation statute can remove the
defect pointed out by the judgment
amending the law with retrospective
effect and validate such impost or
tax. It is a judgment giving effect
to the right of the petitioners to
annual cash bonus under the
settlement by issuing a writ of
mandamus directing the LIC to pay
the amount of such bonus. If by
reason of retrospective alteration
of the factual or legal situation,
the judgment is rendered erroneous,
the remedy may be by way of appeal
or review but so long as the
judgment stands, if cannot be
disregarded or ignored and it must
be obeyed by the LIC. Therefore, in
any event, irrespective of whether
the impugned Act is
constitutionally valid or not, the
LIC is bound to obey the writ of
mandamus issued by the Calcutta
High Court and pay annual cash
bonus for the year April 1, 1975 to
March 31, 1976 to the Class III and
Class IV employees."

In making the aforesaid observation the Court did not
consider the constitutionality of the Act but went by theory
that the mandamus issued by the court calling upon a party
to confer certain benefits to the adversary unless annulled
by way of appeal or review has to be obeyed. This principle
has no application to the case in hand as the nature of
mandamus which has been issued by this Court in Sehgal and
Chopra was merely a declaration of the principles of
seniority as per 1961 Rules and the State Government was to
draw up the seniority list in accordance with the said
Rules. The legislature by enacting the Act and giving it
retrospective effect made several vital changes both on the
definition of service as well as the criteria for
determining the inter se seniority between the direct
recruits and promotees. The impugned Act as has been stated
earlier has not taken away any accrued rights of the direct
recruits, and therefore, the aforesaid observation in

Pathak
's case really will be of no assistance in deciding
the question as to whether the Act purports to have made an
in-road into the judicial sphere. The majority judgment came
to hold that the impugned Act is violative of
Article 31

Clause (2) as the effect of the Act was to transfer
ownership debts due owing to Class III and Class IV
employees in respect of annual cash bonus to the Life
Insurance corporation and there has been no provision for
payment of any compensation of the compulsory acquisition of
these debts. It may be stated that the majority judgment did
not consider the question as to whether the legislatures by
enacting the Act have usurped the judicial power and have
merely declared the judgment of a competent court of law to
be invalid. Beg, C.J. in his concurring judgment in
paragraph 32 of the judgment, however, has observed:

"that the real object of the Act
was to set aside the result of the
mandamus issued by the Calcutta
High Court, though, it does not
mention as such, and therefore, the
learned Judge held that
Section 3

of the Act would be invalid for
trenching upon the judicial power."

Three other learned Judges, namely; Y.V. Chandrachud,
S. Murtaza Fazal Ali and P.N. Shinghal. JJ. agreed with the
conclusion of Bhagwati, J. but preferred to rest their
decision on the sole ground that the impugned Act violates
the provisions of
Article 31(2)
of the Constitution and in
fact they considered it unnecessary to express any opinion
on the effect of the judgment of the Calcutta High Court in
Writ Petition No. 371 of 1976. Thus out of seven learned
Judges, six learned Judges rested their decision on the
ground that the impugned Act violates
Article 31(2)
of the
Constitution and did not consider the enactment in question
to be an act of usurpation of judicial power by the
legislature. The observation of Beg, C.J., in paragraph 32
does not appear to be in consonance with the several
authorities of this Court on the point to be discussed
hereafter. Thus the aforesaid decision cannot be pressed
into service in support of Mr. Sachar's contention. In the
aforesaid premises the authorities cited by Mr. Sachar in
fact do not support the content in urged by the learned
senior counsel and on the other hand a series of authorities
of this Court to be discussed hereafter are directly on the
point unequivocally indicating that the power of the
legislature to enact law and giving it retrospective effect
which may factually render a decision of a competent court
of law ineffective cannot be whittled down.

In
I.N. SAXENA vs. THE STATE OF MADHYA PRADESH
(1976) 3
SCR 237 a contention had been raised with regard to the
validity of an Act to the effect that the Act has been
passed to over rule a decision of this Court which the
legislature has no power to do. In that case the State of
Madhya Pradesh had raised age of compulsory retirement for
government servants from 55 years to 58 years but the very
Memorandum increasing the age of superannuation empowered
the Government to retire a government servant after the
servant attains the age of 55 years. Thereafter Rules under
proviso to
Article 309
of the Constitution were framed
whereby the age of superannuation was raised to 58 years and
there was no provision in the Rules empowering the
government to retire a government servant after the age of
55 years. The employee concerned, however, was retired from
service on completion of 55 years and the said order on
being challenged the Supreme Court held that the appellant
will be deemed to have continued in service inspite of the
order till he attains the age of 58 years and since the
appellant had already attained the age of 58 years it is not
possible to direct that he should be put in service. But he
will be entitled to such benefits an may accrue now to him
by virtue of the success of the Writ Petition. After the
judgment of the Supreme Court or Ordinance was promulgated
which later on became an Act of the State of Madhya Pradesh
and the said Act validated the retirement of the government
servants including the appellant Saxena despite the judgment
of the Court.
The Act
was given retrospective effect and it
empowered a government to retire a government servant on his
attaining the age of 55 years and the
Amending Act
was
challenged on the ground that the legislature has usurped
the judicial power. This Court had negatived the said
contention and held:-

"The distinction between a
"legislative" act and a "judicial"

act is well known, though in some
specific instances the line which
separates one category from the
other may not be easily
discernible. Adjudication of the
rights of the parties according to
law enacted by the legislature is a
judicial function. In the
performance of this function, the
court interprets and gives effect
to the intent and mandate of the
legislature as embodied in the
statute. On the other hand, it is
for the legislature to lay down the
law, prescribing norms of conduct
which will govern parties and
transactions and to require the
court to give effect to that law.

While, in view of this distinction
between legislative and judicial
functions, the legislature cannot
by a bare declaration, without
more, directly over-rule, reverse
or over-ride a judicial decision,
it may, at any time in exercise of
the plenary powers conferred on it
by
Article 245
and
of the
Constitution render a judicial
decision ineffective by enacting or
changing with retrospective,
curative or neutralising effect the
conditions on which such decision
is based. As pointed out by Ray,
C.J. in
Indira Nehru Gandhi v. Raj
Narain
, the rendering ineffective
of judgments or orders of competent
courts and tribunals by changing
their basis by legislative
enactment is a well-known pattern
of all validating Acts. Such
validating legislation which
removes the causes for
ineffectiveness or invalidity of
actions or proceedings is not an
encroachment on judicial power."

In the case of
M/S UTKAL CONTRACTORS AND JOINERY (P)
LTD. AND OTHERS vs. STATE OR ORISSA
, 1987 (Supp.) Supreme
Court Cases 751 a similar contention had been raised but
negatived by this Court. In that case the right to collect,
sale and purchase of sale seeds had been given to the
petitioner and during the subsistence of the contact Orissa
legislature passed an Act called Orissa Forest Produce
(control of trade) Act 1981. Under the provisions of the
said Act the State issued Notification on 9.12.1982 which
had the effect of rescinding the contract of the petitioner.
That order was challenged by filing a Writ Petition which,
however, was dismissed by the Orissa High Court. On an
appeal this Court reversed the decision of the Orissa High
Court and held that the Act does not apply to sale seeds on
government land. A declaration was made by this Court that
the Act and the Notification issued under the Act do not
apply to the forest produce grown in government forest and
that it was, therefore, open to the government to treat the
contract dated 29th May, 1987 as rescinded. The judgments of
this Court is reported in (1987) 3 SCC 279. Thereafter on
29th May 1987 an Ordinance was promulgated, called the
Orissa Forest Produce (Control of Trade) (Amendment and
Validation) Ordinance, 1987 and it was given retrospective
effect as a result of which the earlier decision of this
Court became ineffective. The petitioner, therefore,
challenged the validity of the same on the ground that the
legislature have encroached upon the judicial power and set
aside the binding judgment of this Court. Negativing the
said contention this Court held:-

"The legislature may, at any time,
in exercise of the plenary power
conferred on it by
Articles 245
and
of the Constitution render a
judicial decision ineffective by
enacting valid law. There is no
prohibition against retrospective
legislation. The power of the
legislature to pass a low
postulates the power to pass it
prospectively as well as
retrospectively. That of course, is
subject to the legislative
competence and subject to other
constitutional limitations. The
rendering ineffective of judgments
or orders of competent courts by
changing their basis by legislative
enactment is a well known pattern
of all validating acts. Such
validating legislation which
removes the causes of
ineffectiveness of invalidity of
action or proceedings cannot be
considered as encroachment on
judicial power. The legislature,
however, cannot by a bare
declaration, without more, directly
overrule, reverse or set aside any
judicial decision."

This case is to a great extent in pari materia with the
case in hand where this Court had earlier interpreted the
Rules determining the inter se seniority between the direct
recruits and promotees and thereafter the Haryana
legislatures have enacted the Act giving it retrospective
effect as a result of which earlier decisions of this Court
in
Sehgal
(supra) and
Chopra
(supra) have become
ineffective.

In
BHUBANESHWAR SINGH AND ANOTHER vs. UNION OF
INDIA AND OTHERS
1994 6 SCC 77, a three Judge Bench of this
Court held:

"it is well settled that the
Parliament and State Legislatures
have plenary powers of legislation
on the subjects within their field.
They can legislate on the said
subjects prospectively as well as
retrospectively. If the intention
of the legislature is clearly
expressed that it purports to
introduce the legislation or to
amend the existing legislation
retrospectively, then subject to
the legislative competence and the
exercise being not in violation of
any of the provisions of the
Constitution, such power cannot be
questioned."

The Court also further held:-

"that the exercise of rendering
ineffective the judgments or orders
of competent Courts by changing the
very basis by legislation is a well
known device of validating
legislation and such validating
legislation which removes the cause
of the invalidity cannot be
considered to be an encroachment on
judicial power."

In rendering the aforesaid decision, this Court relied
upon heavily on the Constitution Bench decision of this
Court in
Shri P.C. Mills Ltd. Vs. Broach Borough
Municipality
(1969) 2 SCC 283.

The Court also relied upon
the decisions of this Court in
West Ramona Electric
Distribution Company Ltd. Vs. State of Madras
(1963) 2 SCR
747, Udai Ram Sharma and others etc.

vs. Union of India and
others (1968) 3 SCR 41, Krishna Chandra Gangopadhyaya and
others vs. Union of India and others (
1975) 2 SCC 302 and
Hindustan Gum and Chemicals Ltd. Vs. State of Haryana
and
other (1985) 4 SCC 124.

In
Comorin Match Industries (P) Ltd.
Vs. State of Tamil Nadu
(1996) 4 SCC 281 the same question
again came up for consideration. In this case an assessment
order under the Central Sales Tax was set aside on the basis
of the decision of Madras High Court in the case of Larsen
and Tubro. In Larsen and Turbo certain provisions of the Act
were declared ultra vires. In an appeal against the judgment
of Madras High Court the Supreme Court held that the
provisions of the
Central Sales Tax Act
which had been
declared ultra vires by Madras High Court were validly
enacted.
The Central Sales Tax Act
was amended and the

Amending Act
was given retrospective effect declaring all
assessments made upto 9.1.1969 valid and binding. This was
challenged on the ground that it tantamounts to over riding
a decision of this Court by Legislatures. Rejecting the said
contention this Court held:

"this is not a case of passing a
legislation trying to nullify the
interpretation of law given in the
judgment of a court of law. This is
a case of changing the law itself
on the basis of which the judgment
was pronounced holding that the
assessment orders were erroneous in
law."

In the case of
Indian Aluminium
(supra) to which two of
us Brother Ramaswamy, J. and Pattanaik, J. were parties a
similar contention had been raised and after considering a
large number of authorities of this court and explaining the
decision in the case of
Madan Mohan Pathak vs. Union of
India
this Court negatived the contention and held that when
the legislatures enacting the Act has competence over the
subject matter and when the said enactment is consistent
with the provisions of Part III of the Constitution and the
earlier defects pointed out by the Court have been removed
by the legislatures then the enactment is a valid piece of
legislation and cannot be struck down by the Court on the
ground that it encroaches upon the judicial sphere. A
relevant passage from the aforesaid decision has already
been quoted in the earlier part of the judgment.

In MEERUT DEVELOPMENT AUTHORITY AND OTHERS ETC. vs.
SATBIR SINGH AND OTHERS ETC. (1996) 11 SCC 462 on a similar
contention being raised this Court negatived the same and
held:-

"It is well settled that when the
Supreme Court in exercise of power
of judicial review, has declared a
particular statute to be invalid,
the legislature has no power to
overrule the judgment; however, it
has the power to suitably amend the
law by use of appropriate
phraseology removing the defects
pointed out by the court and by
amending the law consistent with
the law declared by the Court so
that the defects which were pointed
out were never on statute for
effective enforcement of the law."

A similar view has been expressed by this Court in the
case of
State of Orissa and another vs. Gopal Chandra Rath
and others
- (1995) 6 SCC 242.

In view of the aforesaid
legal position when the impugned Act is examined the
conclusion is irresistible that the said Act cannot be said
to be an Act of usurpation of the judicial power by the
Haryana Legislature, but on the other hand it is a valid
piece of legislation enacted by the State Legislature over
which they had legislative competence under Entry 41 of List
II of the VIIth Schedule and by giving the enactment
retrospective effect the earlier judgments of this Court in

Sehgal
(supra) and
Chopra
(supra) have become ineffective.
But since this does not tantamount to a mere declaration of
invalidity of an earlier judgment and nor does it amount to
an encroachment by the legislature into the judicial sphere
the Court will not justified in holding the same to be
invalid. Needless to mention that the impugned Act has
neither been challenged on the ground of the lack of
legislative competence nor has it been established to have
contravened any provisions of Part III of the Constitution.
Consequently Mr. Sachhar's contention has to be rejected and
the Act has to be declared intra vires. Necessarily,
therefore the seniority list drawn up on different dates in
accordance with the earlier Rules of 1961 will have to be
annulled and fresh seniority list has to be drawn up in
accordance with the provisions of the Act since the Act has
been given retrospective effect with effect from 1.11.1996.
It may, however, be reiterated that any promotion already
made on the basis of the seniority list drawn up in
accordance with the Recruitment Rules of 1961 will not be
altered in any manner.

An ancillary question which arises for consideration is
whether on account of the impugned Act any accrued or vested
right of any of the direct recruits to the service is being
taken away? This consideration is relevant inasmuch as
though the legislature may be empowered to enact law and
give it retrospective effect but such law cannot take away
any accrued or vested rights of the employees. Under the
1961 Rules as interpreted by this Court in the case of
Sehgal and Chopra, a direct recruit gets the year of
allotment as the year in which he is recruited as Assistant
Executive Engineer but so far as promotees are concerned
they become a member of the service only after they are
appointed substantively to a cadre post and the quota of
promotees can't exceed 50% of the total number of posts in
the service excluding the posts of Assistant Executive
Engineers to which direct recruitments are made. Inter se
seniority between direct recruits and promotees is regulated
by Rule 12(6) and (7). As a necessary consequence a direct
recruit when promoted as Executive Engineer from the post of
Assistant Executive Engineer was getting seniority over the
promotee Executive Engineers and this situation has been
avoided by the impugned Act by changing the definition of
"service" in Rule 2(12) of the 1961 Rules, by providing the
quota for promotees to exceed 50% in certain contingencies
like non-availability of direct recruits to man the post of
Executive Engineer and by changing the criteria for
determination of inter se seniority and in place of
determination of year of allotment, by providing length of
continuous service to the post of Executive Engineer to be
the determining factor. Necessarily, therefore, by the
impugned Act a direct recruit in the rank of Executive
Engineer would come down in the gradation list than what was
assigns under the Rules of 1961. The question, therefore is
that, is the right of a competence under Entry 41 of List II
of the VIIth Schedule and by giving the enactment
retrospective effect the earlier judgments of this Court in

Sehgal
(supra) and
Chopra
(supra) have become ineffective.
But since this does not tantamount to a mere declaration of
invalidity of an earlier judgment and nor does it amount to
an encroachment by the legislature into the judicial sphere
the Court will not be justified in holding the same to be
invalid. Needless to mention that the impugned Act has
neither been challenged on the ground of the lack of
legislative competence nor has it been established to have
contravened any provisions of Part III of the Constitution.
Consequently Mr. Sachhar's contention has to be rejected and
the Act has to be declared intra vires. Necessarily,
therefore the seniority list drawn up on different dates in
accordance with the earlier Rules of 1961 will have to be
annulled and fresh seniority list has to be drawn up in
accordance with the provisions of the Act since the Act has
been given retrospective effect with effect from 1.11.1996.
It may, however, be reiterated that any promotion already
made on the basis of the seniority list drawn up in
accordance with Recruitment Rules of 1961 will not be
altered in any manner.

An ancillary question which arises for consideration is
whether on account of the impugned Act any accrued or vested
right of any of the direct recruits to the service is being
taken away? This consideration is relevant inasmuch as
though the legislature may be empowered to enact law and
give it retrospective effect but such law cannot take away
any accrued or vested rights of the employees. Under the
1961 Rules as interpreted by this Court in the case of
Sehgal and Chopra, a direct recruit gets the year of
allotment as the year in which he is recruited as Assistant
Executive Engineer but so far as promotees are concerned
they become a member of the service only after they are
appointed substantively to a cadre post and the quota of
promotees can't exceed 50% of the total number of posts in
the service excluding the posts of Assistant Executive
Engineers to which direct recruitments are made. Inter se
seniority between direct recruits and promotees is regulated
by Rule 12(6) and (7). As a necessary consequence a direct
recruit when promoted as Executive Engineer from the post of
Assistant Executive Engineer was getting seniority over the
promotee Executive Engineers and this situation has been
avoided by the impugned Act by changing the definition of
"service" in Rule 2(12) of the 1961 Rules, by providing the
quota for promotees to exceed 50% in certain contingencies
like non-availability of direct recruits to man the post of
Executive Engineer and by changing the criteria for
determination of inter se seniority and in place of
determination of year of allotment, by providing length of
continuous service to the post of Executive Engineer to be
the determining factor. Necessarily, therefore, by the
impugned Act a direct recruit in the rank of Executive
Engineer would come down in the gradation list than what was
assigns under the Rules of 1961. The question, therefore is
that, is the right of a government servant to get a
particular position in the gradation list is a vested or
accrued right? The answer to this question has to be in the
negative. As early as in 1962 this Court in the case of THE
HIGH COURT
OF CALCUTTA vs. AMAL KUMAR ROY
, (1963) 1 S.C.R.
437, in the Constitution Bench considered the question
whether losing some places in the seniority list amounted to
reduction in rank, and came to hold:

"In the context of Judicial Service
of West Bengal, "reduction in rank"

would imply that a person who is
already holding the post of a
Subordinate Judge has been reduced
to the position of a Munsif, the
rank of a Subordinate Judge being
higher than that of a Munsif. But
Subordinate Judge in the same cadre
hold the same rank, though they
have to be listed in order of
seniority in the Civil List.

Therefore, losing some places in
the seniority list is not
tantamount to reduction in rank.

Hence, it must be held that the
provisions of
Article 311(2)
of the
Constitution are not attracted to
this case."

To the said effect the judgment of this Court in the
case of
THE STATE OF PUNJAB vs. KISHAN DAS
, (1971) 3 S.C.R.
389, wherein this Court observed:

"an order forfeiting the past
service which has earned a
Government servant increments in
the post or rank he holds,
howsoever adverse it is to him,
affecting his seniority within the
rank to which he belongs or his
future chances of promotion does
not attract
Article 311(2)
of the
Constitution since it is not
covered by the expression reduction
in rank."

Thus to have a particular position in the seniority
list within a cadre can neither be said to be accrued or
vested right of a Government servant and losing some places
in the seniority list within the cadre does not amount to
reduction in rank even though the future chances of
promotion gets delayed thereby. It was urged by Mr. Sachar
and Mr. Mahabir Singh appearing for the direction recruits
that the effect of re-determination of the seniority in
accordance with the provisions of the Act is not only the
direct recruits lose a few places of seniority in the rank
of Executive Engineer but their future chances of promotion
are greatly jeopardise and that right having been taken away
the Act must be held to be invalid. It is difficult to
accept this contention since chances of promotion of
Government servant are not a condition of service.
In the
case of
STATE OF MAHARASHTRA AND ANOTHER vs. CHANDRAKANT
ANANT KULKARNI AND OTHERS
, (1981) 4 S.C.C. 130 this Court
held:

"Mere chances of promotion are not
conditions of services and the fact
that there was reduction in the
chances of promotion did not
tantamount to a change in the
conditions of service. A right to
be considered for promotion is a
term of service, but mere chances
of promotion are not".

To the said effect a judgment of this Court in the case
of
K. JAGADEESAN vs. UNION OF INDIA AND OTHERS
, (1990) 2
S.C.C. 228, where in this Court held:

"the only effect is that his
chances of promotion or his right
to be considered for promotion to
the higher post is adversely
affected. This cannot be regarded
as retrospective effect being given
to the amendment of the rules
carried out by the impugned
notification and the challenge to
the said notification on that
ground must fail".

Again in the case of
UNION OF INDIA AND OTHER vs. S.L.
DUTTA AND ANOTHERS
, (1991) 1 S.C.C. 505, this Court held:

"in our opinion, what was affected
by the change of policy were merely
the chances of promotion of the Air
Vice-Marshals in the Navigation
Stream. As far as the posts of Air
Marshals open to the Air Vice-

Marshals in the said stream were
concerned, their right or
eligibility to be considered for
promotion still remained and hence,
there was no change in their
conditions of service".

In
ZOHRABI vs. ARJUNA AND OTHERS
, (1980) 2 S.C.C. 203,
this Court observed that
"a mere right to take advantage of
the provisions of an Act is not an
accrued right".

The aforesaid observation would equally apply to the
case in hand since the only argument advanced on behalf of
the direct recruits was that the advantage which they we re
receiving under the 1961 Rules to get their seniority in the
rank of Executive Engineer is being taken away by the
impugned Act. Since the said right is not an accrued right
the legislatures were well within their power to make the
law.

In the aforesaid premises, it must be held that the
direct recruits did not have a vested right nor any right
had accrued in their favour in the matter of getting a
particular position in the seniority list of Executive
Engineers under the pre-amended Rules which is said to have
been taken away by the Act since such a right is neither a
vested right of an employee nor can it be said to be an
accrued right. Thus there is no bar for the legislature to
amend the law in consequence of which the inter se position
in rank of Executive Engineer might get altered.
consequently, we see no invalidity in the enactment of the

Haryana Service of Engineers, Class I, Public Works
Department (Building and Roads Branch) (Public Health
Branch) and (Irrigation Branch) Respectively Act, 1995
.
Though the Act in question is a valid piece of legislation
but it is difficult to sustain
Section 25
of the Act in toto
since a plain reading of the said provision does not make
out any meaning.
Section 25
of the Act is quoted hereinbelow
in extenso:-

"25. The Haryana Service of
Engineers Class I, Public Works
Department (Buildings and Roads
Branch), (Public Health Branch) and
(Irrigation Branch) Respectively
Ordinance, 1995 (Haryana Ordinance
No. 6 of 1995), is hereby repealed.
The Punjab Service of Engineers,
Class-I, Public Works Department
(Buildings and Roads Branch) Rules,
1960, the Punjab Service of
Engineers, Class I, Public Works
Department (Public Health Branch)
Rules, 1961, the Punjab Service of
Engineers Class I, Public Works
Department (Irrigation Branch)
Rules, 1964, in their application
to the State of Haryana, are also
hereby repealed to the extent that
these rules shall continue to apply
to the person who were members of
the Service before 1st day of
November, 1966;

Provided that such repeal shall not
effect--

(a) any penalty or punishment
imposed as a result of disciplinary
proceedings;

(b) any disciplinary action or
proceedings initiated or pending
under the rules so repealed;

(c) any relaxation in
qualifications granted to any
member of the service under the
rules so repealed;

(d) the benefits accrued to the
persons who have retired from
service during a period commencing
from the 1st day of November, 1966
and ending with the date of
promulgation of the Haryana Service
of Engineers, Class I, Public Works
Department (Buildings and Roads
Branch), (Public Health Branch) and
(Irrigation Branch) respectively
Ordinance, 1995.

and the Punjab Service of
Engineers, Class I, Public Works
Department (Building and Roads
Branch) Rules, 1960, the Punjab
Service of Engineers, Class I,
Public Works Department (Punjab
Health Branch) Rules 1961 and the
Punjab Service of Engineers, Class
I, Public Works Department
(Irrigation Branch) Rules, 1964,
shall continue to be in force as if
the same had not been repealed."
The aforesaid provision repeals the previous Rules
framed under proviso to
Article 309
of the Constitution as
well as repealed the Ordinance of 1995. It also saves the
action taken in respect of matters enumerated in Clause a to
d. It further purports to indicate that the earlier Rules
would apply to the person who were members of the service
before 1st day of November 1996 though on a plain reading of
the main part of Section 25 really does not convey the
aforesaid meaning. The learned counsel appearing for the
State of Haryana could not indicate as to what is the true
meaning of Section 25. Dr. Rajiv Dhawan, learned senior
counsel, however, in course of his arguments contended that
though on a plain grammatical meaning being given to Section
25 is not susceptible of representing the true intention of
the Legislature and in fact it conveys absolutely no meaning
bu the Court should fill up the gap by applying the
principle of causes and provide the work "except" in the
first part of Section 25 after the worked "to the extend"

and such filling up being done the provisions of Section 25
would convey the true intention of the legislature. Though
on principles Mr. Dhawan, learned senior counsel may be
right in this submission that Courts can apply the principle
of causes omissus and fill the gap by adding certain words
when the Statute does not convey the correct meaning. But it
the case in hand we do not think it appropriate to apply
that principle, inasmuch as the Act itself having been given
retrospective effect with effect from 1st November, 1966 the
date on which the State of Haryana came into existence there
is no rational to apply the pre existing rules to those
employees who were members of the service before that date
even after the pre-existing rule is being repealed by the
Act. In this view of the matter we hold that the expression
`to the extent that these rules shall continue to apply to
the persons who were members of the Service before 1st day
of November, 1966' is invalid and is accordingly struck
down. Remaining part of Section 25 as well as the proviso to
the said Section will, however, remain operative.

Though in view of our conclusion that the Act is intro
virus, the inter se seniority of the concerned officers are
required to be re-determined in accordance with the Act
itself, subject however, to the restrictions that promotions
already made will not be annulled but since the judgment of
the Punjab and Haryana High Court in favour of the direct
recruit B.D. Sardana was rendered by interpreting the
Recruitment Rules of 1961 and relying upon the earlier
decisions of this Court in
Sehgal and Chopra
(supra) it
would be appropriate for us to also deal with the said
judgments since an appeal has been carried to this Court by
the promotees in Civil Appeal No. 422 of 1993.

After the
judgment of this Court in
Sehgal
(supra) and
Chopra
(supra)
when the State Government drew up the seniority list in the
rank of Executive Engineers on 6.4.92 Shri Sardana who had
been appointed directly as an Assistant Executive Engineer
on 7.12.1977 challenged the said seniority list claiming
therein that initially 10 officers having formed the cadre
when haryana became a separate State and all of them being
promotees and as such the quota of promotees was in excess
of the 50% which is the permissible quota under the
Recruitment Rules, he should be given the position just
after 10 persons who constituted the initial cadre
irrespective of the fact that he was recruited on 7.12.1977.

The further contention before the High Court was that the
State Government was not entitled to re-determine the cadre
strength each year after the judgment of this Court in

Sehgal
(supra) and
Chopra
(supra). The High Court by the
impugned judgment appears to have been persuaded to accept
both these contentions and the promotees, therefore, have
assailed the legality of the same.

Mr. D.D. Thakur, learned
senior counsel appearing for these promotees as well as Dr.
Rajiv Dhawan, learned senior counsel appearing for some of
the promotees urged that the High Court was in error to hold
that the State Government was not entitled to re-determine
the cadre strength each year retrospectively subsequent to
the judgment of this Court in
Sehgal
(supra) and
Chopra

(supra). It was contended that 10 persons who constituted
the initial cadre when the State of Haryana was formed and
all those 10 persons having been allocated to Haryana from
the erstwhile State of Punjab on the basis of their domicile
it would be reasonable to construe and apply the Recruitment
Rules which was in force in Punjab and which had been
adopted by Haryana by fictionally holding the recruitment of
10 persons to be the initial recruitment to the cadre and by
fictionally holding that the Recruitment Rules which was
adopted by Haryana was in fact came into existence so far as
the State of Haryana is concerned on 1.11.1966. According to
the learned counsel unless such a construction is given the
position will be very anomalous and direct recruits like
Shri Sardana will be senior to promotees who had been
promoted even in the year 1968 or 1969 even though Sardana
was recruited as an Assistant Executive Engineer only on
7.12.1977. According to the learned counsel the Rule in
question cannot be construed in such a manner to bring about
gross inequities and, therefore, a reasonable construction
should be made.

Mr. Sachhar, learned senior counsel and Mr.
Mahabir Singh, learned counsel appearing for the direct
recruits and Mr. Sardana, appearing in person, on the other
hand, submitted that it was not necessary for the State
Government to redetermine the cadre strength every year
retrospectively since the judgment of this Court in
Sehgal

(supra) and
Chopra
(supra) merely authorises the Government
to determine the cadre strength if it has not already been
done. According to the learned counsel such re-determination
of cadre strength every year has been mala fidely done by
increasing the strength of the cadre so as to accommodate
the promotees within 50% quota available for them under the
Recruitment Rules and, therefore, such redetermination must
be struck down and the High Court has rightly struck down
the same. It was also contended on their behalf that the
initial cadre having been constituted on 1.11.1966 and the
entire cadre being filled up by application of the
provisions of the Recruitment Rules, 5 of them were beyond
the permissible limit of 50% quota in the service.
Consequently until the cadre strength is so maintained so as
to bring down the ratio of 50% so far as the promotees are
concerned any direct recruit may during the intervening
period must be held to be senior to such promotees and
therefore, the High Court was fully justified in holding
that Mr. Sardana should rank below 10 persons who
constituted the initial cadre irrespective of the hardship
that may be caused to the promotees. According to the
learned counsel while interpreting a particular rule the
Court is not required to look into the hardship which the
interpretation may cause so long as the rules are
unambiguous.

It was ultimately contended that the High Court
has rightly struck down the seniority list that has been
drawnup on 6.4.1992 as well as the determination of cadre
strength made by the state government and, further the list
that was drawn up on 15.4.1997, while the appeals were
pending in this Court is the correct gradation list
reflecting he inter se seniority of the direct recruits and
promotees correctly in accordance with the interpretation of
the rules given by this Court in the case of
Sehgal
(supra)
and
Chopra
(supra).

The rival submissions require a careful
examination of the relevant provisions of Rule of 1961 as
well as in the light of the earlier decisions of this Court
in
Sehgal
(supra) and
Chopra
(supra). Before examining the
same it may be stated that the Division Bench of the Punjab
and Haryana High Court in the impugned judgment came to the
conclusion that the State Government was not entitled to re-
determine the cadre strength retrospectively and by such
action of the State Government by increasing the cadre
strength promotees have been given undue advantage and
direct recruits like B.D. Sardana have lost their vested
right and, therefore, such an order cannot be sustained in
law. The High Court also further came to the conclusion that
on carving of State of Haryana when the initial cadre was
fixed at 10 and 10 persons brought over from erstwhile State
of Punjab the Recruitment Rules of 1961 must be made
applicable to them and consequently the quota of promotees
cannot exceed 50%. In this view of the matter since all the
10 persons who constituted the cadre in 1966 were promotees
and thus far beyond the permissible quota of 50% the first
direct recruit in the cadre Shri Sardana must be given 11th
position in the seniority list and he would be senior to all
those promotees who were promoted after the initial
formation of the cadre irrespective of their date of
promotion as an Executive Engineer and irrespective of the
date on which Mr. Sardana was appointed directly as an
Assistant Executive Engineer on 7.12.1977.

As has been
stated earlier, this Court in
A.N. Sehgal
's case (supra) on
considering the recruitment rules decided the principles for
determination of inter se seniority between the direct
recruits and the promotees and left the matter for the State
Government to re-determine the same by applying the law as
declared by this Court. While interpreting the provisions of
the Rules the Court came to hold that a promotee within
quota under Rule 5 (2) gets his seniority form the initial
date of his promotion and the year of allotment, as
contemplated in Rule 12(6) shall be the next below `the
juniormost officer in the service whether officiating or
confirmed as Executive Engineer before the former's
appointment' counting the entire officiating period towards
seniority, unless there is break in the service or from the
date of later promotion. Such promotee, by necessary
implication, would normally become senior to the direct
recruit promoted later. Combined operation of sub-rules (3)
to (5) of Rule 12 makes the direct recruit a member of the
service of Executive Engineer form the date of year of
allotment as an Assistant Executive Engineer. The
Court
further held
that necessary conclusion would, therefore, be
that the direct recruits shall get seniority with effect
from the date of the year of the allotment as Assistant
Executive Engineer which is not alterable. Whereas the
promotee would get his seniority with effect from the date
of the availability of the posts within 50% quota of the
promotees and the year of allotment is variable and the
seniority shall be reckoned accordingly. In concluding
paragraph of the judgment the Court directed the Government
of Haryana to determine the cadre posts regularly form time
to time including the post created due to exigencies of
service in terms of Rule 3(2) read with Appendix `A' and
allot the posts in each year of allotment as contemplated
under Rule 12 read with Rule 5(2)(a) and issue orders
appointing substantively to the respective posts within the
quota and determine the inter se seniority between the
promotees and direct recruits in the respective quota cadre
posts of Executive Engineers etc.

in
Sehgal
(supra) the
Court was dealing with the service of Engineers Class I PWD
(Roads and Building) Branch.

Similarly in
Chopra
(supra) the
Court dealt with the service of Engineers (Public Health
Branch), the rules of Public Health Branch being the same as
the rules in Roads and Building Branch. In concluding
paragraph of
the said judgment
though an affidavit had been
filed by one of the appellants that the State Government has
determined the cadre strength but this Court declined to go
into the question and left it open to the Government of
determine the seniority after giving opportunity to all
parties in the light of the law
laid down in
the case.

In

Chopra
's case (supra) in paragraph 10 of the judgment this
Court had observed that under Rule 3(2) read with Appendix
`A' the State Government is enjoined to determine the cadre
post from time to time and during the first 5 years on first
day of January every year and later from time to time and
divide the posts as per the ratio f the available cadre post
to the promotees and the direct recruits and shall make
appointment in a substantive capacity.

In course of argument Mr. K.T.S Tulsi, learned senior
counsel appearing for the State of Haryana had pointed out
that the State Government had taken steps for making direct
recruitment to the cadre but as no competent people were
available, per force the cadre was to be managed by filling
up the posts by promotees and it was done in the public
interest. The learned counsel had urged that there is no
justification in the arguments advanced by the counsel for
direct recruits that the promotees were in fact given undue
favour. We are, however, really not concerned with this
submission while interpreting the relevant provisions of the
Rules and the Rules having been framed under the proviso to

Article 309
of the Constitution the same has to be
scrupulously followed. But at the outset on going through
the two earlier decisions of this Court in
Sehgal
(supra)
and
Chopra
(supra) there should be no hesitation to come to
the conclusion that the High Court was in error to hold that
the State Government was not entitled to re-determine the
cadre strength retrospectively every year and such re-
determination is invalid and inoperative. On the other hand
since the cadre strength had not been determined regularly
though it was enjoined upon the State Government to do so
this Court had called upon the State Government to re-
determine the cadre strength and thereafter determine the
inter se seniority of the direct recruits and promotees in
terms of Rule 12 of Recruitment Rules bearing in mind the
law
laid down by
this Court interpreting the different
provisions of the Rules. The said conclusion of the High
Court, therefore, must be quashed.

Now coming to the question as to how the initial
appointees to the service are to be dealt with since in the
two earlier cases this Court had never considered this
question, the question assumes a greater significance.

The Rules framed under the proviso to
Article 309
of
the Constitution came into force w.e.f. the <??> June, 1961,
the date on which the Rule was published in the official
Gazet. Under sub-rule (1) of Rule 3, it is stipulated that
the service shall comprise of such number of posts of
Assistant Executive Engineers, Executive Engineers,
Superintending Engineers and Chief Engineers as may be
specified by Government from time to time. Under sub-rule
(2) of Rule 3 the strength of the service for the first five
years after the common cement of these rules shall be
determined each year on the 1st day of January or soon
thereafter as may be practicable according to the provisions
of Appendix A and the strength so determined shall remain in
force till it is revised. Sub-rule (2) of Rule 5 stipulates
that the recruitment to he service shall be so regulated
that the number of posts filled up by promotion form Class
II Service shall not exceed fifty per cent of the number of
posts in the Service, excluding the posts of Assistant
Executive Engineers. Proviso to sub-rule (2) provides that
till adequate number of Assistant Executive Engineers
eligible and considered fit for promotion are not available
the actual percentage of officers promoted form Class II
service may be larger than 50%. Sub-rule (3) of Rule 5
speaks of a fictional situation namely in the service as
constituted immediately after the commencement of these
rules, it shall be assumed that the number of persons
recruited by promotion form Class II Service shall be 50% of
the senior posts in the Service and future recruitment shall
be based on this assumption. Sub-rules (1) and (2) of Rule 3
and sub-rules (2) and (3) of Rule 5 of 1961 Rules may be
extracted herein below in extenso :

"3. Strength of Service : (1) the
Service shall comprise of such
number of posts of Assistant
Executive Engineers, Executive
Engineers and Chief Engineers as
may be specified by Government from
time to time.

(2) Without prejudice to the
generality of the provisions of
sub-rule (1) the strength of the
Service for the first five years
after the commencement of these
rules shall be determined each year
on the 1st day of January or as
soon thereafter as may be
practicable according to the
provisions of Appendix A. The
strength so determined shall remain
in force till it is revised.

5. Recruitment to service : (2)
Recruitment to the service shall be
so regulated that the number of
posts filled by promotion from
Class II Service shall not exceed
fifty per cent of the number of
posts in the Service, excluding the
posts of Assistant Executive
Engineers;

Provided that till such time as an
adequate number of Assistant
Executive Engineers, who ar
eligible and considered fit for
promotion, are available, the
actual percentage of Officers
promoted from Class II Service may
be larger than fifty per cent.

(3) In the Service as constituted
immediately after the commencement
of these rules, it shall be assumed
that the number of recruited by
promotion from Class II Service is
fifty per cent of the senior posts
in the Service and further
recruitment shall be based on this
assumption."

From a combined reading of the aforesaid provisions the
following situation emerges :-

(a) That the Rules came into force w.e.f. 9th of June,
1961 but the service existed even prior to the said date;

(b) On constitution of the service immediately after the
commencement of the Rules by operation of a fictions it was
assumed that number of persons recruited by promotion from
Class II service is 50% of the senior post in the service.

This fictional situation emerges in view of sub-rule (3) of
Rule 5, so that, the future recruitment to the service can
be regulated appropriately under sub-rule (2) of Rule 5; and

(c) A duty was enjoined upon the State Government to
determine the strength of the service each year on the 1st
day of January or soon thereafter as may be practicable for
the first five years after the commencement of the Rules and
the strength thus determined year to year would remain in
force till it is revised.

When recruitments were being made without determination
of the cadre strength and statutory rules came into force
for the first time on 9th of June, 1961 the Rules cast a
duty on the Government to determine the cadre strength each
year and thereafter make recruitment in terms of Rule 5
regulating the manner of filling up the post in the service
subject to the provisions contained in sub-rule (2) of Rule

5. Rule 12 is rules for determination of seniority. This
Rule has already been interpreted by this Court in Sehgal
and Chopra indicating the manner in which the seniority bas
to be determined inter se between the promotees and direct
recruits. When State of Haryana came into existence and
persons were serving in the erstwhile State of Punjab were
drafted into State of Haryana and constituted the initial
cadre strength of the service in the State of Haryana and
the Government of Haryana adopted the Punjab Rules of 1961
for determining the service conditions of the employees it
would be reasonable to hold that so far as the State of
Haryana is concerned the Recruitment Rules came into force
on 1.11.1966 and since the persons who constituted the
service came from erstwhile State of Punjab depending upon
their domicile it would be further reasonable to construe
that they constituted the service soon after the rules were
adopted by the State of Haryana and thereafter Rule 5(3)
should be attracted in respect of those 10 officers who
constituted the service and by such application, by a
fiction 50% should be treated to be promotees and on so
treating them further recruitment to the service was
required to be regulated in accordance with sub-rule (2) of
Rule 5 and it is then the inter se seniority has to be
determined under Rule 12. In other words, out of 10 persons
who were brought over form the erstwhile State of Punjab and
constituted the service in the State of Haryana 5 will be
assumed to have been recruited by promotion from Class II
service by application of sub-rule (2) of Rule 5 even if
factually all the 10 were promotees while they were
recruited under the Punjab Rules. Since the initial cadre
strength was only 10 in the year 1966 and since under Rule
5(2) the promotees cannot exceed 50% of the total number of
posts in the services, the Recruitment Rules by fiction held
50% of the persons constituted the service immediately
after the commencement of the Rules to be promotees.
Thereafter the State Government was duty bound to determine
the cadre strength every year in the first five years as per
sub-rule (2) of Rule 3 and in fact this direction had been
given in the earlier judgments in the case of Sehgal and
Chopra and after such determination of the cadre strength if
in a particular year it is found that the promotees have
usurped the quota of direct recruit then such promote cannot
be held to be senior to the direct recruit notwithstanding
their earlier recruitment to the service. If these
principles are borne in mind then the gradation list which
had been prepared by the State Government on 6.4.1992 was
possibly the correct gradation list and the High Court was
in error to quash the said gradation list on a conclusion
that the earlier direction of this Court in Sehgal and
Chopra has not been followed. Obviously, the High Court
misunderstood the directions of this Court in the case
Sehgal and Chopra. We are however, not going o examine the
said gradation list that was prepared on 6.4.1992 or any
other gradation list which had been prepared subsequently
during the pendency of these appeals, since in our view the
Act having been come into force and the Act have been given
retrospective effect the seniority has to be drawn up afresh
in accordance with the provisions of the Act.

So far as the rules dealing with Irrigation Branch is
concerned, the said rules namely Punjab Service of Engineers
(Irrigation Branch) Class I Service Rules, 1964 has not been
considered earlier by this Court at any point of time. One
Shri M.L. Gupta was appointed to the post of Assistant
Executive Engineer as a direct recruit on 27.8.1971,
pursuant to he result of a competitive examination held by
the Haryana Public Service Commission in December, 1970.
Said Shri Gupta was promoted to the post of Executive
Engineer on 17.9.1976. He made representation to the State
Government to fix up his seniority in accordance with the
service rules but as the said representation was not
disposed of for more than three years he approached the High
Court of Punjab and Haryana by filing C.W.P. NO. 4335 of
1984. That petition was disposed of by the High Court on the
undertaking given by the State that the seniority will be
fixed up soon. The said undertaking not having been complied
with, said Shri Gupta approached the High Court in January
1986 by filling Contempt Petition. In September, 1986 the
State Government fixed the inter se seniority of said Shri
Gupta and other members of the service ad Gupta was shown at
serial no. 72. Two promotees had been shown at serial no. 74
and 75. Those two promotees filed a writ petition
challenging the fixation of inter se seniority between the
direct recruits and promotees and High Court of Punjab and
Haryana by its judgment passed in May 1987 quashed the order
dated 29.9.1986 whereunder the seniority of the direct
recruits and promotees has been fixed and called upon the
State Government to pass a speaking order assigning position
in the gradation list. The State Government issued a fresh
notification on 24.7.1987 giving detailed reasons re-
affirming the earlier seniority which had been notified on
29.9.1986. Prior to the aforesaid notification of the State
Government Shri Gupta had filed a writ petition in the
Punjab and Haryana High Court which had been registered as
CWP No. 6012 of 1986 claiming his seniority at No. 22
instead of 72 which had been given to him under the
notification dated 29.9.1986. The promotees also filed a
writ petition challenging the Government order dated
24.7.1987 which was registered as CWP No. 5780 of 1987. Both
the writ petitions, one filed by direct recruit - Shri Gupta
(CWP No. 6012 of 1986) and the other filed by the promotees
(CWP No. 5780 of 1987) were disposed of by the learned
Single Judge by judgments dated 24th January, 1992 and 4th
March, 1992 respectively, whereunder the learned Single
Judge accepted the stand of the promotees and Shri Gupta was
placed below one Shri OP Ganged. Said Shri Gupta filed two
appeals to the Division Bench against the judgment of the
learned Single Judge, which was registered as Letters Patent
Appeal nos, 367 and 411 of 1992. The aforesaid Letter Patent
Appeals were allowed by judgment dated 27th August, 1992.
This judgment of the Division Bench of Punjab and Haryana
High Court was challenged by the State of Haryana in the
Supreme Court which has been registered as CA Nos. 1448-49
of 1993. This Court granted leave and stayed the operation
of the judgment in the matter of fixation of seniority. The
promotees also challenged
the said judgment
of the Division
Bench in this Court which has been registered as CA Nos.
1452-1453 of 1993. During the pendency of these appeals in
this Court, a Ordinance was promulgated on 13.5.1985 as
Ordinance No. 6 of 1995 and the said Ordinance was replaced
by the impugned Act of 20 of 1995 by the Haryana
Legislature. The validity of the Act was challenged by said
Shri Gupta and pursuance to the order of this Court the said
writ petition having been transferred to this Court has been
registered as T.C. No. 40 of 1996. So far as the validity of
the Act is concerned, the question of any usurpation of
judicial power by the legislature does not arise in relation
to Irrigation Branch inasmuch as the Recruitment Rules of
1964 framed by the Governor of Punjab in exercise of power
under proviso to
Article 309
of the Constitution which has
been adapted by the State of Haryana on and from the date
Haryana was made separate State had not been considered by
this court nor any direction has been issued by this court.
The legislative competence of the State legislature to enact
the Act had also not ben assailed and in our view rightly
since the State legislature have the powers under Entry 41
of List - II of the Seventh Schedule to frame law governing
the conditions of service of the employees of the State
Government. That apart
Article 309
itself stipulates that
the appropriate Legislature may regulate the recruitment,
and conditions of service of persons appointed, to public
services and posts in connection with the affairs of the
Union or of any State subject to the provisions of the
Constitution. Proviso to
Article 309
confers power on the
President in connection with the affairs of the Union and on
the Governor in connection with the affairs of the State to
make rules regulating the recruitment and the conditions of
service until provision in that behalf is made by or under
an Act of the appropriate Legislature under
Article 309
main
part. In this view of the matter, the legislative competence
of the State legislature to enact the legislation in
question is beyond doubt. The only question which therefore,
arises for consideration and which is contended in assailing
the validity of the Act is that under the Act the direct
recruits would lose several positions in the gradation list
and thereby their accrued and vested rights would get
jeopardised and their future chances of promotion also would
be seriously hampered and such violation tantamounts
violation of rights under Part - III of the Constitution.
For the reasons already given while dealing with the
aforesaid contention in connection with the Public Health
Branch and the Road Building Branch the contention rased in
the Transfer Case cannot be sustained and, therefore, the
Transfer Case would stand dismissed.
The Act
in question
dealing with the service conditions of he engineers
belonging to the Irrigation Branch must be held to be a
valid piece of legislation passed by the competent
legislature and by giving it retrospective effect no
constitutional provision has ben violated nor any right of
the employee under Part - III of the constitution has been
infringed requiring interference by this Court.

So far as the four appeals are concerned, one at the
instance of the State and other at the instance of the
promotee engineer, even though it is not necessary to
examine those appeals since the inter se seniority of the
members of the service will have to be re-drawn up in
accordance with the provisions of the Act, yet arguments
having been advanced by the learned advocates appearing for
the parties, we may briefly deal with the same. The Division
Bench of the Punjab and Haryana High Court in disposing of
the Letters Patent Appeal in favour of the direct recruit
has come to the conclusion that the interpretation given by
the Supreme Court to the Recruitment Rules dealing with the
Public Health Branch and the Roads and Building Branch in
Sehgal and Chopra would equally apply to the Irrigation
Branch. In coming to the aforesaid conclusion the learned
Judges of the High Court have failed to appreciate the
difference between the rules dealing with the Irrigation
Branch and the two sets of rules dealing with the Public
Health Branch and the Roads and Building Branch. So far as
the rules dealing with the Irrigation Branch is concerned,
Rule 2(12)(c) makes a promotee officer on probation or
having successfully completed his probation awaiting
appointment to a cadre post to be a member of the service
which was not the position in the Public Health Branch as
well as in the Roads and Building Branch. Then again under
rule 5(2) the percentage of promotees was required to be so
regulated so as not to exceed 75% of the number of posts in
the service for the first 10 years form the date of the
commencement of the Rules and thereafter it shall not exceed
50% of the number of posts in the service excluding the
posts of Assistant Executive Engineer. Proviso to the
aforesaid rules also entitles the Government to grant
permission beyond 75% during the first 10 years of the
commencement of the rules and beyond 50% thereafter in case
sufficient number of direct recruits - Assistant Executive
Engineers are not available and considered fit for
promotion. Rule 12 which deals with the determination of
inter se seniority is also somewhat different than the
similar rule for the Public Health Branch and the Roads and
Building Branch which had been considered by this Court in
the cases of Sehgal and Chopra.
In this view of the matter,
the Division Bench of the Punjab and Haryana High Court was
not justified in disposing of the appeal relying upon the
earlier decisions of this Court in
A.N. Sehgal
's case. The
learned Judges have not focussed their attention to the
difference in the rules meant for the Irrigation Branch and
the Rules meant for the Public Health Branch and Roads and
Building Branch. The impugned judgment, therefore, passed by
the Division Bench of the Punjab and Haryana High Court is
erroneous and cannot be sustained. But as has been stated
earlier it is not necessary to delve into the question in a
more detailed manner since the Act having come into force
and the Act being made effective retrospectively w.e.f
1.11.1966, the date on which the State of Haryana was
formed, the inter se seniority has to be determined in
accordance with the provisions of the Act. Consequently, the
judgment of the Punjab and Haryana High Court in LPA Nos.
367 and 411 of 1992 is set aside an the State of Haryana is
directed to re-determine the inter se seniority of the
members of the service belonging to the Irrigation Branch in
accordance with the provisions of the Act. Civil Appeal Nos.
1448-1449 of 1993, 1452-1453 of 1993 and T.C. No. 40 of 1996
are disposed of accordingly.

In the ultimate result, therefore, we hold Haryana Act
20 of 1995 is intra virus except part of Section 25 which
has been held to be ultra virus.
The Act
having been given
retrospective effect with effect from 1.11.1966 the inter se
seniority of direct recruits and promotees in each of the
services, namely, the PWD Branch, the Public Health Branch
and the Irrigation Branch will have to be re-drawn up in
accordance with the provisions of the Act. The seniority
lists already drawn up subsequent to the judgment of this
court in the case of Sehgal and Chopra and as well as during
the pendency of these appeals in this court are of no
consequence in view of the Act coming into force. It is,
however, made clear that any promotion already given on the
basis of seniority determined by the Government under the
pre-existing rules will not be annulled notwithstanding any
change in the seniority to be determined under the Act. The
impugned judgments of Punjab and Haryana High Court are set
aside. The State Government is directed to re-consider the
question of seniority of the employees of the three Branches
under the Act within a period of six months form today and
to give consequential promotion on that basis soon
thereafter.

All the appeals and the transfer cases are disposed of
accordingly.