JUDGMENT
Farooq Hasan, J.
1. K.C. Goyal (Petitioner), a Diploma Holder in Mechanical Engineer (Year 1965) & then, A.M.I.E. passed on 8th August, 1976, assails, through this writ petition under Article 226 of the Constitution of India, the constitutional validity of the Amendments in the Rajasthan Service of Engineering (Public Health Branch) Rules, 1968 (for short, ‘the Principal Service Rules’) and the Rajasthan Engineering Subordinate Service (Public Health Branch) Rules), 1967, for brevity, ‘the Subordinate Engineering Service Rules’) made vide notifications dated 30th May, 1977 (Anx.7), 28th July, 1978 (Ann, 8),. 22nd June, 1976 (Ann. 5) and 18th June, 1977 (Anx.6) as violative of & ultra vires Articles 14 and 16(1) of the India.
2. the facts, simple enough as they are ‘have copiously been averred by the petitioner. Shorn of all unnecessary detail, a broad brush factual backdrop will help delineate the controversy.
3. Initially, vide order dated 2nd July, 1965, the petitioner, on his having found suitable by a selection committee, was temporarily appointed as Engineering Subordinate (Mechanical); then, on the recommendation of the Rajasthan Public Service Commission to which, the petitioner had applied for appointment, he was appointed & posted as Temporary Engineering Subordinate vide order dated 16-5-1967 (Anx. 1), and was confirmed on that post vide order dated 8-12-1970 (Anx. 2). Thereafter, on 8th August, 1976 the petitioner passed A.M.I.E. and he was posted as a Junior Engineer (Mechanical) w.e.f. 8-8-1976 vide Chief Engineer’s (PHED) order dated 30th October, 1976 (Anx. 3).
4. In the final seniority list issued on 21st May, 1979, the petitioner’s name was shown at serial No. 38 and in the said list (Anx. 4 ) his date of confirmation according to the alleged screlening was shown as 1st November, 1968.
5. At the very out set, we would like to epitomize the primitive features of the relevant service rules. The recruitment to and the conditions of service of the persons appointed to the Subordinate Service in the Public Health Engineering Department are governed by the provisions contained in the Subordinate Engineering Service Rules, 1967, which were promulgated by notification of 6th September, 1967 whereas such conditions of service of persons appointed to the State Service are governed by the provisions contained in the Principal Service Rules, 1968 which were promulgated by notification of 11th July, 1968. These Service Rule’s, 1968 were amended firstly by notification of 22nd June, 1976 Ann. 5) by which, definition clause in Rule 2, Rule 6, Rules 24 and 29 apart from the schedule were amended. Thereby, it was provided that the post of Assistant Engineer (Mechanical) or (Electrical) will be filled in 55% by direct recruitment and then 50% by promotion which was further sub-divided in equal ratio of 25% and 25% to be filled from amongst Junior Engineers (Mechanical or Electrical) and Sub-Engineers (Mechanical or Electrical). Then, by another notification of 18th June, 1977 (Anx. 6) the amendment made by notification of 22nd June, 1976 was given retrospective effect from 1st April, 1975.
6. The Subordinate Service Rules, 1967 for the first time came to be amended vide notification of 30th May, 1977 (Anx. 7) and new proviso 4 to Rule 6 was inserted entitling a Sub-Engineer to be appointed as Junior Engineer by transfer on attaining the qualification required for it viz., Degree in Engineering or equivalent qualifications. This amendment notification of 30th May, 1977 (Ann. 7) was subsequently given retrospective effect from 1st April, 1975 by another notification of 28th July, 1978 (Anx. 8), which led the petitioner to file this writ petition praying therein that the aforesaid notification be declared ultra vires to the Constitution of India and be quashed; and further praying that the seniority list dated 21st May, 1979 declaring it illegal be quashed restraining the respondents from acting upon the list for future promotion on the posts of Assistant Engineers (Mechanical), and if any promotions are accorded during the pendente writ petition it was prayed to be quashed.
7. First and foremost grievance of the petitioner is that the amendment made in the Subordinate Service Rules, 1967 and the State Service Rules, 1968 could not be given retrospective effect.
8. For the first time, the amendment was made in the Subordinate Service Rules, 1967 on 30-5-1977 making separation effective only with these rules whereas the amendment in the State Service Rules, 1968 was wholly ineffective till the bifurcation was made in the Subordinate Service Rules, 1967. According to the petitioner, if the bifurcation is made on May 30, 1977 in the Subordinate Service Rules, 1967, a separate seniority list would be prepared as on May 30, 1977; and accordingly as on that day the petitioner having already done in August, 1976, his AMIE equivalent to a Degree, he would be categorised as Junior Engineer in the bifurcated cadre and would accordingly be entitled to be placed with Junior Engineers on 30-5-1977. For the petitioner, learned Counsel added that by making the amendment retrospective from 1st April, 1975, the petitioner’s right in sub-cadre of Junior Engineers is being taken away. Thus, the learned Counsel resolutely contended that the amendment made in Subordinate and State Services Rules cannot be given retrospective effect resulting in violation of the petitioner’s right of seniority in the cadre of Junior Engineer and promotion from amongst Junior Engineers. To fortify his contention, learned Counsel for the petitioner placed reliance upon the decision of the Apex Court in Ex. Capt. K.C. Arora v. State of Haryana 1984 (2) SLR 97 wherein in view of the authoritative pronouncement in State of Gujarat v. Roman Lal Keshav Lal Soni 1983 SCC 33, the court observed that the law appears to be well settled and the Haryana Government cannot take away the accrued rights of petitioners and the appellants by making amendment of the rules with retrospective effect.
9. In Slate of Gujarat v. Raman Lal Keshav Lal Soni (supra), a Constitution Bench of the Apex Court had to consider the constitutional validity of the proviso to Section 102(1)(a) of the Gujarat Panchayat Act, 1961, as introduced by the Gujarat Panchayat (Third Amendment) Act, 1978, with retrospective effect. Their Lordships observed that the Amending Act was sought to be given retrospective effect to get over the constitutional safeguards of Articles 311 and 14 by reverting to a situation that existed some years ago, and then said that there was no power to do so and 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 have to conform to the do’s and dont’s of the Constitution neither prospective nor retrospective law 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, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today’s rights and not yesterday’s. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of twenty years. That would be most arbitrary, unreasonable and a negation of a history.
The aforesaid observations were followed in T.R. Kapur v. State of Haryana , referring to the observation of Chandrachud, C.J. (as he then was) speaking for the Constitution Bench in B.S. Yadav v. State of Punjab which read as under:
Today’s equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujrat Panchayats (Third amendment) Act, 1978 is unconstitutional, as it offends Articles 311 & 14 and is arbitrarily and unreasonable.
10. Applying the afore-quoted principles laid down by their Lordships of the Apex Court to the facts of the present case, in our opinion, the impugned Notifications (Ann. 5 to 8) are illegal arbitrary, and discriminatory. In these amendments there is no provisions for bifurcation for the cadre of Engineering Subordinate in two sub-cadres of Junior Engineers and Sub-Engineers, and without that, any provisions are absolutely in-operative. With regard of seniority rule, amendment was made in Rule 28 providing inter-se seniority in respective sub-cadres but that too by giving retrospective effect from 1st April, 1975 by notification of 28th July, 1975 (Ann. 8) which is unconstitutional, as it offends Articles 309 and 14 and, is arbitrary and un-reasonable. There is no justification for bifurcation for the cadre of Engineering Subordinate in two sub-cadres in as much as that too for mini and micro classification when the qualifications for appointment to the post of Engineering Subordinate were one and the same apart from pay scale, duties and responsibilities being same. Therefore further dissection is not justified. The Governor exercises the legislative power under proviso to Article 309 of the Constitution, and 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, as in this case. The proviso to Article 309 of the Constitution only empowers the Governor to frame the Rules for regulating the service conditions of the employees, but, does not empower him, to create hostile discrimination between the employees similarly situate, creating fictional cadres and depriving a particular group of persons their seniority & chance of promotion.
11. Thus, having benefitted by the enlightenment derived from the decisions referred to above that we follow here in, we are of the view that the benefit acquired under the rules has been taken away by the impugned notifications with retrospective effect affecting and impairing vested rights of the petitioner. The petitioner is and had entitled to count his seniority for all the period he had worked as Engineering subordinate. Even if the bifurcation of the cadre is held to be permissible which we would not do, the petitioner comes in the cadre of Junior Engineer, and the petitioner cannot be deprived of his seniority by making a provision like one made by the amendment dated 30th May, 1977 in the form of proviso (4) to Rule 6. Thus, in out considered opinion, the impugned notifications resulted in serious discrimination between the petitioner and all those who were selected along with him through the Public Service Commission because, as held above, these offend Articles 309 & 14 of the Constitution and are arbitrary and un-reasonable.
12. In the result, this writ petition must succeed and is a allowed. The impugned’ notifications (Annexures 5 to 6) making the amendments giving retrospective effect in the respective service Rules are declared to be ultra vires the Constitution, and thus are quashed in so far as they affect prejudicially persons who had acquired rights as stated above. A writ in the nature of mandamus is issued directing the respondents No. 1 and 2 to prepare the seniority list afresh, treating earlier seniority list dated 21-5-1979 as non-existent because we quash if, in the light of the decision of the this Court ignoring the provisions of the amendment vide impugned notifications which we have quashed as stated above. And then, the respondents Nos. 1 & 2 shall grant all consequential’ benefits of seniority and promotion to the petitioner within earliest short period but not later than four months because the petitioner has been waiting since 1979, foe the fruits of his acquired rights.
No order as to costs