PETITIONER: B. S. VADERA Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 27/03/1968 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. HIDAYATULLAH, M. (CJ) BACHAWAT, R.S. HEGDE, K.S. GROVER, A.N. CITATION: 1969 AIR 118 1968 SCR (3) 575 CITATOR INFO : R 1970 SC 385 (7) RF 1971 SC1716 (5) R 1972 SC2427 (9) R 1975 SC1646 (23,28,29) RF 1980 SC2181 (118) R 1981 SC 783 (7) RF 1981 SC1099 (6) F 1985 SC 551 (37) R 1987 SC 415 (16) RF 1987 SC1676 (16) D 1987 SC1858 (21) R 1990 SC 334 (99) ACT: Constitution of India, Art. 309-Railway Establishment Code, r. 157- Railway Board's Secretariat Clerical Service (Reorganisation) Scheme framed in 1957 but made applicable from 1954-Board's power to frame rules with retrospective effect. HEADNOTE: The petitioners who were working as Assistants were by the operation of the Railway Board's Secretariat Clerical Service (Reorganisation) Scheme reverted as Upper Division Clerks in 1967. The said scheme was framed on February 5, 1957 but was brought into effect from December 1, 1954. Certain modifications to the scheme relating to the manner of filling up of permanent and temporary vacancies in Grade I of the Service were made in 1963. The petitioners came to this Court under Art. 32 of the Constitution challenging the orders of reversion passed against them as illegal. On behalf of respondents the orders were defended as being based on the order of seniority which had been refixed according to the said Scheme. The contentions advanced on behalf of the petitioners were : (i) That their promotion as Upper Division Clerks and later as Assistants had been on a permanent basis and could not be disturbed; (ii) That the Scheme as well as the various orders passed by the respon- dents were violative of Arts. 14 and 16 of the Constitution; (iii) That the second respondent (Railway Board) had no power in law, to frame either the Scheme, or the modified Scheme so as to have retrospective effect from December 1. 1954. HELD : (-i) The ranking given to the petitioners as a result of which the impugned orders of reversion were passed was in accordance with the Scheme as modified in 1963. On the facts, the contention of the petitioners that their appointment as Upper Division Clerks and later as Assistants was on a permanent basis, could not be accepted. [582 B-C] (ii) Once it was held that the petitioners did not satisfy the requirements of the scheme for being retained as Assistants there was no question of any discrimination under Art. 14 or violation of Art. 16 arising for consideration at all. [582 G] (iii) The Indian Railway Establishment Code has been issued by the President in exercise of the powers vested in him by the proviso to, Art. 309 of the Constitution.. Rule 157 of the Code gives the Railway Board full powers to make rules of a general application to non-gazetted railway servants under their control. If full effect is given to the words in Art. 309, namely 'and any rules so made shall have effect subject to the provisions of any such AcV, then in the absence of any Act as aforesaid, in the present case, the power to make rules with retrospective effect cannot be denied to the Railway Board. Accordingly the Scheme framed by the said Board in 1957 could be made retrospectively effective from Decemher 1, 1954. [583 E, 584 H, A-El State v. Padmanabhacharya, [1966] 1 S.C.R. 994 and Nagarajan v. Mysore, [1966] 3 S.C.R. 682, considered. 576 Ram Autar v. State of U.P. A.I.R., 1962 AR. 328 F.B. approved. Govindaraju v. State of Mysore, A.I.R. 1963 Mys. 265 an( Goindappa v. I.G. of Registration, A.I.R. 1965 Mys. 25, disapproved. JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 96 and 165 of
1967.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
S. K. Mehta and K. L. Mehta for the petitioner (in W.P. No.
96 of1967).
A. K. Sen, A. P. Chatterjee and M. M. Kshatriya, for the
Petitioner(in W.P. No. 165 of 1967).
C. K. Daphtary, Attorney-General, V. A. Seyid Muhammad and
R. N. Sachthey, for respondents Nos. 1 and 2 (in both the
petitions).
B. R. G. K. Achar, for respondents Nos. 3, 6 to 9, 13, 15,
17, 18, 21,, 26, 29, 30, 31, 36, 39, to 45, 47, 50, 53 to
55, 58, 61, 64, 66, 69, 76, 77, 81, 82, 87, 91, 94, 96, 97,
103 to 105, 108, 123, 136 and 150 (in W.P. No. 96 of 1967).
The Judgment of the Court was delivered by
Vaidialingam, J. In both these writ petitions, under Art. 32
,of the Constitution, the petitioners seek to have quashed,
certain orders passed by, the 2nd respondent and, in
particular, the order dated June 16, 1967, reverting them,
as Upper Division Clerks, with effect from June 9, 1967.
The Union of India, through the Chairman, Railway Board, and
the Secretary, Railway Board, are respondents I and 2,
respectively, in these proceedings. The other respondents
are officers, working under the 2nd respondent, who,
according to the petitioners, have been given preferential
treatment, by way of promotion, under the orders, impugned,
in these proceedings.
At the outset, it may be stated, that the various orders,
passed by the 2nd respondent, referred to, by both the
petitioners, are one and the same, and therefore, we shall
refer to those proceedings, in accordance with the anexure
number, given to them, in Writ Petition No. 96 of 1967.,
Wherever necessary, we shall advert to any separate order,
that has been referred to, by the petitioner, in Writ
Petition No. 165 of 1967.
According to the petitioner in Writ Petition No. 96 of 1967,
he joined service, ‘on July 16, 1955, as Lower Division
Clerk, was promoted, with effect from February 2, 1957, as
Upper Division Clerk and further promoted, as Assistant, on
February 3,
577
1958. His grievance is that while he was holding the post
of such Assistant, from 1958, he has been illegally, and
without any justification, reverted, as Upper Division
Clerk, with effect from June 9, 1967, as per the impugned
order, dated June.16, 1967 (Annexure 16). Similarly
according to the petitioner, in Writ Petition No. 165 of
1967, he joined as a Lower Division Clerk, on September 14,
1954, was promoted as Upper Division Clerk, with effect from
February 2, 1957 and was further promoted, as Assistant, on
February 3, 1958. His grievance is that while he was so
holding the post of Assistant, from 1958, he has been
illegally, and without any justification, reverted as Upper
Division Clerk, with effect from June 9, 1967, as per
Annexure 16.
According to the Railway Board, these promotions, made of
the petitioners, either as Upper Division Clerk, in the
first instance, or, later, as Assistant, were purely on a
temporary and ad hoc basis, pending the framing of the
Railway Board’s Secretariat Clerical Service (Re-
organization) Scheme, which was in contemplation, at the
material time. The Scheme (Annexure 4), was actually framed
on February 5, 1957, and the Railway Board’s Secretariat
Clerical Service was to be organized, in the manner, set out
therein. Under this Scheme, there were to be two grades of
service-(i) Grade I-Upper Division Clerk; and (ii) Grade H-
Lower Division Clerk. The authorised permanent strength of
the Service, in Grade 1, was fixed at 45, and of Grade II,,
at 82. The initial constitution of the service, was to be
with effect from December 1, 1954.
On March 30, 1963, some of the provisions, contained in
Annexure 4, were modified, by Annexure 7. One of the modi-
fications, effected under Annexure 7, related to the manner
of filling up of permanent vacancies and temporary
vacancies, in. Grade I of the Service, and this
modification was also to have effect, from the date of the
initial constitution of the Service, viz., December 1, 1954.
In 1965, a final panel was drawn up, strictly on the basis
of the Scheme, for promotion to the Grade of Upper Division
Clerks, in which the names of all the Lower Division Clerks
‘were arranged, strictly in accordance with their seniority
positions, in that Grade. Accordingly, the names of the
petitioners, who had been promoted as Officiating Upper,
Division Clerks, in 1957, were entered, in that ‘panel, in
accordance with their inter se seniority as Lower Division
Clerks. As the posts of Upper Division Clerks were non-
selection posts, so far as promotion quota was concerned,
they had to be filled in, on the basis of seniority-
suitability and hence a particular officer’s seniority, as
Lower Division Clerk, was duly reflected in his seniority as
Upper
578
Division Clerk. Similarly, Upper Division Clerks, who were
promoted as officiating Assistants, were also promoted, on
the basis of their seniority, in the Upper Division Clerks’
Grade and, therefore, their seniority, in the Lower Division
Clerks Grade, was thus reflected in the Assistants Grade.
The petitioners were required to be reverted, for such Upper
Division Clerks, who were senior to them, being posted in
the Grade of Assistants. Effort, however, was made, to
avoid hardship to persons, like the petitioners, who were
functioning as Assistants, by deciding to make available,
vacancies in the Assistants’ Grade, by promotion and by
curtailing the quota, reserved for direct recruits; but the
petitioners could not be continued as Assistants, for an in-
definite period, as difficulty arose, when there was
contraction, in the Cadres, by some of the Section Officers,
being reverted, as Assistants, in June 1967. This, in
consequence, resulted in the reversion of certain
Assistants, including the petitioners, to the posts of Upper
Division Clerks. The reversions themselves were made
strictly in the reverse order of seniority. According to
the Railway Board, the petitioner, in Writ Petition 96 of
1967 is still a temporary Lower Division Clerk, and he has
not been even confirmed in that Grade, because he has not
passed the requisite typing test. It is further stated that
the petitioner, in Writ Petition 165 of 1967 is even now not
a permanent Upper Division Clerk, and that he was confirmed,
as Lower Division Clerk, in 1966, with effect from September
14, 1957. Therefore, according to the Railway Board, the
impugned orders were all valid and legal and did not
contravene any provisions of the Constitution, nor did they
infringe any of the rights of the petitioners.
In order to appreciate the arguments, addressed before use
on behalf of the petitioners, and respondents I and 2, it is
necessary to give, in chronological order, the events,
leading up to the filing of these writ petitions. On August
22, 1956, the second respondent issued a Circular Annexure
1, about having decided to hold a test, for drawing up a
panel of staff considered suitable for promotion, to the
Grade of Assistants. The categories of staff, eligible to
appear for the test, as well as the subjects for the written
tests, were mentioned, therein. There is no controversy
legal and did not contravene any provisions of the
Constitution, examination, and they also successfully got
through the interview. The second respondent simultaneously
took a decision that posts ,of Upper Division Clerks, which
were introduced at about that time, may also be filled up,
on the basis of the results of the test, which was, no
doubt, primarily held for the purpose of filling the posts
of Assistants. The criterion for promoting Lower Division
Clerks, to the posts of Upper Division Clerks and
Assistants, was, that persons, who obtained 50% or more of
the marks, were
579
to be promoted, as Officiating Assistants, and those who
obtained between 40 and 49%, were to be promoted, as
Officiating Upper Division Clerks. Their inter se seniority
was also to be, in accordance with their inter se seniority,
as Lower Division Clerks. As both the petitioners had
passed the test, they were promoted, as Officiating Upper
Division Clerks, With effect from February 2, 1957. The
order, appointing the petitioners, as Officiating Upper.
Division Clerks, is Annexure 3, dated February 1, 1957. It
is the claim of the petitioners that they were promoted, on
a regular basis, as Upper Division Clerks, and that a panel
of Assistants and Upper Division Clerks, was formed, by, the
2nd respondent.
Meanwhile, the framing of a scheme for the Railway Board
Secretariat Clerical Service, was in the offing, and such a
scheme, was ultimately issued, under Annexure 4, on February
5, 1957. The 2nd respondent has filed a statement,
regarding the circumstances, under which the Scheme was
framed, in consultation with the Union Public Service
Commission, and the Ministry of Home Affairs. The scheme
was for filling the posts of Lower Division Clerks, Upper
Division Clerks and such of the Upper Division Clerks who
can be promoted as Assistants. Paragraph 14, sub paras (1)
and (3), dealt with the filling up of posts of Grade 1,
Upper Division Clerks, of the Clerical Service. That
provided for the different manner in which the permanent
vacancies, and temporary vacancies, were to be filled up, in
the authorized strength of Grade I of the Service. Under
paragraph 14, sub-para I (b), promotion to the cadre -of
Upper Division Clerks, can only be made of permanent Lower
Division Clerks, for permanent vacancies, and, under
paragraph 14, sub-para (3), only permanent Lower Division
Clerks and temporary Lower Division Clerks, with more than
three years’ standing, and graduate Lower Division Clerks,
could be promoted to Temporary vacancies in the Cadre. But,
in view of the non-availability of permanent Lower Division
Clerks, the Scheme could not be implemented to fill
permanent vacancies, immediately.
Similarly, under para 16 of the Scheme, permanent Upper
Division Clerks, with three years’ service in the grade, or
in a higher grade, were eligible for promotion, as
Assistants. But, here again, no permanent Upper Division
Clerks were available, at that time. As certain vacancies
existed, in the posts of Assistants, and required to be
filled’ up, as a purely short-term measure, it was, decided,
by the 2nd respondent, that some of the posts of Assistants,
may be temporarily filled up, by promotion from Upper
Division Clerks. In view of this decision, the petitioners
were promoted, as Assistants, on an ad hoc basis with effect
from February 3, 1958, tinder Annexure 5, dated February 1,
1958. That order clearly shows that the petitioners,
including others, who were officiating as Upper Division
Clerks,
580
were promoted to officiate, as Assistants, on a purely
short-term arrangement. It was further stated, in paragraph
5, of this Annexure, that the promotion is a purely short-
term arrangement till qualified Assistants become available,
and that the promotion, under that order, will not confer,
on the promotees, any claim for retention, as Assistants, as
a long-term measure.
It may also be stated, at this stage, that it is the claim,
of both the petitioners, that they have been promoted, on a
regular basis, as Assistants, under this Order, and that, in
consequence, the order of reversion, passed on June 16,
1967, is illegal. That contention is clearly belied, by the
express terms of the Order, Annexure 5, promoting these
petitioners.
Later on, in or about 1959, as there were vacancies in the
grade of Upper Division Clerks,,. a panel was drawn, by the
2nd respondent, called ‘Interim Provision Panel’, to fill in
temporary vacancies, and certain Lower Division Clerks were
considered suitable, for promotion as Upper Division Clerks,
again, on a purely short-term arrangement. That is Exhibit
6, dated June 24, 1959.
On March 30, 1963, the original Service Scheme Annexure 4,
was amended in certain material particulars, by Annexure 7.
Paragraph 14, of the original Scheme, was modified, by
providing a different method of promotion, to Grade I (Upper
Division Clerks). Under this modified scheme, the
distinction between the manner of recruitment, in respect of
permanent vacancies, and temporary vacancies, which existed
in the original scheme, was done away with. The modified
scheme provided a uniform method of promotion, to both
permanent vacancies, in ‘the authorized, strength of Grade I
Service, as well as temporary vacancies. Broadly, the
method of appointment, to this Grade, was (a) 80%, by
promotion of permanent Lower Division Clerks and temporary
Lower Division Clerks, with more than three years of service
in the Grade, on the basis of seniority, subject to
rejection of the unfit; (b) 20%, on the basis of competitive
examination, limited to the Lower Division Clerks.
In 1965, a final panel was drawn up, according to the Rail-
way Board, on the basis of ‘the Scheme, Annexure 4, as
modified by Annexure 7. That panel consisted of Lower
Division Clerks, fit for promotion to the grade of Upper
Division Clerks. The Lower Division Clerks were arranged,
strictly in accordance with their seniority position, in
that Grade. The final panel is Annexure 14, dated March 30,
1965; and, according to the Petitioner in Writ Petition No.
96 of 1967, he has lost 148 places, and, according to the
petitioner, in the connected writ petition, he has lost 110
places, in seniority. Both the petitioners are aggrieved
about the ranking, given to them, in this list.
581
On June 9, 1967, under Annexure 18, the Railway Board had
reverted, to the grade of Assistants, with immediate effect,
the Officiating Section Officers, shown therein. In
consequence, under Annexure 16, dated June 16, 1967, which
is one of the orders, under attack, in both these petitions,
the Railway Board reverted, as Upper Division Clerks,
several officiating Assistants, including the two
petitioners, herein, with effect from June 9, 1967. As.
mentioned earlier, the main grievance of the petitioners is,
that they having been promoted, as Assistants, as early as
February 3, 1958, and which posts they had been holding till
1967, their reversion, as Upper Division Clerks, under
Annexure 16, is illegal and void.
We have referred to the relevant orders, promoting these
two, petitioners, in the first instance, as Upper Division
Clerks and, later, as Assistants. The order promoting the
petitioners, as Assistants, Annexure 5, dated February 1,
1958, has been referred to, already, and that order clearly
shows that the promotion was only a short-term, temporary
arrangement, on an officiating basis, and that no claim
could be based -upon that promotion. No doubt, the order,
Annexure 3, dated February 1, 1957, promoting the
petitioners, as Upper-Division Clerks, may, on a superficial
reading of that order, -give the impression that the
promotion, is on a permanent basis, and from which further
promotion is to be made, to the Grade of Assistants, but, in
view of what is stated, on behalf of the Railway Board, the
promotion, under Annexure 3, is again, a temporary
promotion, because the Scheme, Annexure 4, was to come into
force, within a very short time, and that the promotions
were made, only on a provisional basis. The regular
promotions, or appointments, to Upper Division Grade., which
is styled as Grade 1, were to be made, as envisaged under
the Scheme, Annexure 4, dated February 5, 1957. Both the
petitioners have, categorically, averred in their petitions,
that Annexure 4, as modified by Annexure 7, has
retrospective effect, from December 1, 1954.
The second respondent has also given various particulars,
regarding as to how the framing of the Scheme originated, as
well as the different stages, it had to pass through. In
fact, it is also seen, from the documents filed, on behalf
of the respondent, that there was a suggestion, by either
the Home Ministry, or the Union Public Service Commission,
that the Scheme was to come into effect, on the date it was
promulgated; but that was met, by the Board, by replying
that an assurance had been given to the staff, to whom the
Scheme had been circulated, that the crucial date, for
initial constitution of the Scheme, was to be fixed as
December 1, .1954. In fact, a reading of Annexures 4 and 7,
also clearly shows that the initial constitution of the
Service, is to be from December 1, 1954, and it is, on that
basis,
582
that appointments, or promotions, are to be made. Once it
is held that the initial constitution of the Service, is
from the date, mentioned above, on the basis of Annexure 4,
read with Annexure 7, it follows that the promotion of the
petitioners, as Upper Division Clerks, under Annexure 3, was
not under the Scheme, but really on a provisional, or
temporary basis. Notwithstanding the fact that the
grievance of both the petitioners is that ranking has not
been given to them properly, in Exhibit 16, we are satisfied
that it is in accordance with the principles, under the
Scheme Annexure 4, as modified by Annexure 7. Therefore, we
are not inclined to accept the contention of the petitioners
that there has been a promotion, on a permanent basis, in
the first instance, as Upper Division Clerks and, later, as
Assistants, which can-not be disturbed, by any orders that
-may be passed, by the 2nd respondent. We have already
indicated that the regular promotions and appointments have
to be made, under the Scheme, with effect from December 1,
1954.
In particular, a contention has been raised, on behalf of
the petitioner in Writ Petition No. 165 of 1967, that he
stands on -a different footing, in that he is a permanent
Lower Division Clerk ,and, therefore, his promotion, as an
Assistant, must, again, have been, on a permanent basis.
There is no substance, in this contention, in view of the
statement, made by the 2nd respondent, that this petitioner
was confirmed, as a Lower Division Clerk, in 1966, with
effect from September 14, 1957, in which case it follows
that he will not be eligible, for promotion, as an Upper
Division Clerk, under the Scheme. The petitioner, in Writ
Petition No. 96 of 1967, as pointed out, by the 2nd
respondent, continues, even now, as a temporary Lower
Division Clerk, and be has not been made permanent, and,
therefore- he cannot certainly be considered eligible, for
promotion, under the Scheme.
A further contention has been taken, on behalf -of the peti-
tioner in Writ Petition No. 165 of 1967, that the Scheme, as
well as the various orders, passed by the 2nd respondent,
violate the provisions of Arts. 14 and 16, of the
Constitution, inasmuch as be has been deprived of the
benefits of Chapters H and III, of the Indian Railway
Establishment Manual. Once it is held That the said
petitioner does not satisfy the requirement of the Scheme
there is no question of any discrimination, under Art. 14,
or violation of Art. 16, arising for consideration at all.
Therefore, ‘both the petitioners, will have to fail, on
merits.
A more serious contention has, however, been taken, by the
petitioners, that the second respondent has no power, in
law, to frame, either the Scheme, Annexure 4, or the
modified Scheme, Annexure 7, so as to have retrospective
effect, from December 1, 1954. Though both the petitioners
have raised this contention
583
in the writ petitions, Mr. Chatterjee, learned counsel for
the petitioner in Writ Petition No. 165 of 1967, was not
prepared to wake up that extreme position, because, his
attempt, was to show hat his client satisfies the
requirement of the qualifications, laid down for promotion,
in Annexure 4, read with Annexure 7. We have already
negatived that contention; but this legal contention has
been persisted, before us, by Mr. K. L. Mehta, counsel
appearing for the petitioner, in Writ Petition No. 96 of
1967.
Mr. Mehta, by reference to the provisions of the Indian
Railway Board Act, 1905 (Act IV of 1905), and to the
decision of this Court in State v. Padmanabhacharya(1),
urged that the 2nd respondent had no power to frame a rule,
having retrospective effect. In our opinion, this
contention cannot be accepted. Act IV of 1905 is an Act to
provide for investing the Railway Board with certain powers
of functions, under the Indian Railways Act, 1890. The
preamble to that Act shows that a Railway Board has been
constituted, for controlling the administration of Railways
in India. Section 2 provides that the Central Government,
may, by notification, in the Official Gazette, invest the
Railway Board, either absolutely, or subject to conditions,
with powers, or -functions, stated therein. That statute,
does not, in any way, advance the petitioners’ contention.
As we shall presently show, the decision of this Court,
referred to above, does, not also support, the petitioners.
There is no controversy that the Indian Railway Establish-
ment Code has been issued, by the President, in exercise of
the, powers, vested in him,. by the proviso to Art. 309, of
the Constitution. Only two rules require to be noted, and
they are rr. 157 and 158, occurring in Chapter 1, under the
sub-heading ‘Power to frame rules’. They are as follows:
” 157. The Railway Board have full powers to
make rules of a general application to non-
gazetted railway servants under their control.
158. The General Managers of Indian Railways
have full powers to make rules with regard to
non-gazetted railway servants under their
control, provided they are not inconsistent
with any rules made by the President or the
Railway Board.”
We are not concerned, really in this matter, with r. 158,
because the Scheme, Annexures 4 and 7, in particular, and
the various orders, have been passed by the 2nd respondent,
the Railway Board. The Railway Board, as will be seen from
r. 157, have full powers to make rules of general
application, to non-gazetted railway servants under their
control. The question is whether the,
(1) [1966] 1 S.C.R. 994.
584
2nd respondent, has, while acting under r. 157, power to
make -a rule (in this case, the Scheme), having effect from
an anterior date.
The matter must be considered, in the light of the
provisions ,of Art. 309, of the Constitution. That Article
provides :
“309. Subject to the provisions of this
Constitution, Acts of 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 :
Provided that it shall be competent for the,
President or such person as he may direct in
the case of services and posts in connection
-with the affairs’ of the Union, and for the
Governor of a State or such person as he may
direct in the case of services and posts in
connection with the affairs of the State, to
make rules regulating the recruitment, and the
conditions of service of persons appointed, to
such services and posts until provision in
that behalf is made by or under an Act of the
appropriate Legislature under this article,
and any rules so made shall have effect
subject to the provisions of any such Act.”
We may emphasize the words ‘and any rules so made shall have
effect subject to the provisions of any such Act, which must
receive their due weight. To that aspect, we- shall come,
presently.
We have already pointed out, that Annexure 4 was issued on
February 5, 1957, and Annexure 7, on March 30, 1963, and
that the initial constitution of the Service was to be from
December 1, 1954, and it-is, on that basis, that the
promotions, or appointments, to the Service, are to be made.
In this -case, there is no Act of the appropriate
Legislature, regulating the recruitment and conditions of
service, under the 2nd respondent and, therefore, the main
part of Art. 309 is not attracted. But, under the Proviso
therein, the President has got full power to make rules,
regulating the recruitment, and conditions of service, of
persons, under the 2nd respondent Further, under the
Proviso, such person, as may be directed by the President,
can also make rules, regulating the recruitment and
conditions of service, of persons, under the 2nd respondent.
The rules so made, either by the President, or such person;
as he may direct, will have currency, until provision, in
that behalf,is made by or under an Act, of the appropriate
Legislature, under Art. 309.
It is also significant to note that the proviso to Art. 309,
clearly lays down that ‘any rules so made shall have effect,
subject to the provisions of any such Act’. The clear and
unambiguous
585
expressions, used in the Constitution, must be given their
full ad unrestricted meaning, unless hedged-in, by any
limitations. the rules, which have to be ‘subject to the
provisions of the Constitution, shall have effect, ‘subject
to the provisions of any such Act. That is, if the
appropriate Legislature has passed an Act, under Art. 309,
the rules, framed under the Proviso, will have effect,-
subject to that Act; but, in the absence of any Act, of the
appropriate Legislature, on the matter, ‘in our opinion, the
rules, I made by the President, or by such person as he may
direct, are to have full effect, both prospectively, and,
retrospectively. Apart from the limitations’ pointed out
above, there is none other, imposed by the proviso to Art.
309, regarding the ambit of the operation of such-rules. In
other words, the rules, unless they can be impeached on
grounds such as breach of Part 111, or any other
Constitutional provision, must be enforced, if made by the
appropriate authority.
In the case before us, the Indian Railway Establishment Code
has been issued, by the President, in the exercise of his
powers,” under the proviso to Art. 309. Under Rule 157 the,
President has directed the Railway Board, to make rules, of
general application to non-gazetted railway servants, under
their control. The rules, which are embodied in the
Schemes, framed by the Board, under Annexures 4 and 7, are
within the powers, conferred under r. 157; and, in the
absence of any Act, having been passed by the ‘appropriate’
Legislature, on the said matter, the rules, framed by the
Railway Board, will have full effect and, if so indicated,
retrospectively also. Such indication, about retrospective
effect, as has already been pointed out by us, is clearly
there, in the impugned provisions.
The decision of this Court in State v. Padmanabhacharya(1),
does not assist the petitioners. The rule, that came up,
for consideration, has been referred to, at P. 999, of the
Reports, in the judgment of Wanchoo, J., (as he then was);
and the Court specifically says that the rule, referred to
by it, cannot be made, under the proviso to Art. 309, of the
Constitution. It is further stated that the notification,
referred to, cannot be said to be a rule, regulating the
recruitment and conditions of service of persons appointed
to the services and posts, in connection with the affairs of
the State. This Court further observes that the effect of
the notification, or the rule, that it had to consider, was,
to select certain Government servants, who had been
illegally required to retire, and to say that even if the
retirement had been Illegal, that retirement should be
deemed to have been properly and lawfully made. Finally,
the Court said, that such a declaration, made by the
Governor, cannot, in any sense, be regarded as a rule, made
under
(1) [1966] 1 S.C.R. 994.]
586
the proviso to Art. 309. Having held that the rule, which
was before it, was not one made under the proviso to Art.
309, the Court further observed, in that case, that it was
not necessary to decide, whether a rule, governing
conditions of service, of persons appointed in connection
with the affairs of the State, can be made retrospectively,
under the proviso to Art. 309. This decision, in our
opinion, can be distinguished, on two grounds : (i) that the
rule, in question, construed by the Court, was held to be
one, not coming within the purview of the proviso to Art.
309; and (ii) the question, as to whether a rule, under the
proviso to Art. 309, can be framed, to have retrospective
effect, has been left open.
In this connection, we, may refer to two decisions, of the
Mysore High Court, and one of the Allahabad High Court. The
Mysore High Court, in the decisions, Govindaraju v. State of
Mysore(‘) and Govindappa v. I. G. of Registration(1), has
taken the view that it is, not open to the Governor, under
the proviso to Art. 309, to frame a rule, having
retrospective effect. We may state that the decision in
Govindaraju’s Case(2) came up, before this Court, on appeal,
in Nagaraian v. Mysore (3). But this Court, in Nagarajan’s
Case(3), had no, occasion to express any opinion on the
question as to whether the Governor, under the proviso to
Art. 309, could frame a rule, having retrospective
operation, as it took the view that the relevant rules had
not been made under Art. 309.
A Full Bench of the Allahabad High Court, on the other hand,
in Ram Autar v. State of U.P. (4) has taken a view, contrary
to the one, expressed by the Mysore High Court. We are of
opinion that the latter, represents the correct view. But,
even the Allahabad High Court has not given due importance
to the mandatory words, used in the concluding part of the
proviso to Art. 309, that the rules made, by the authority
mentioned therein, ‘shall have effect, subject to the
provisions of any such Act’. This aspect has been
emphasized by us, in the earlier part of this judgment.
To conclude, on this aspect, ‘we are satisfied that the
Scheme, Annexure 4, as modified by Annexure 7, framed by the
2nd respondent, Railway Board, such as it is, must have
effect, as it does not suffer from any defect in its making
and does not offend against the Constitution.
In the result, both the -writ petitions are dismissed; but,
in the circumstances, parties will bear their own costs.
Petitions dismissed.
G.C
(1) A.I.R. 1963 Mys. 265. (3) [1966] 3 S.C.R. 682.
(2) A.I.R. 1965 Mys. 25. (4) A.I.R. 1962 All. 328, F.B.
587