L.P.A.No. 842 of 1992 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
L.P.A.No. 842 of 1992
Date of Decision : 03.07.2009
Subhash Chander Awasthi and others ...Appellants
Versus
State of Punjab and others ...Respondents
CORAM:HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Dr. Balram K. Gupta, Sr. Advocate, with
Ms. Anamika Negi, Advocate,
for the appellants.
Mr. H.S.Sidhu, Addl. AG, Punjab.
Mr. Rajiv Atma Ram, Sr. Advocate, with
Mr. B.N.S.Sharma, Advocate,
for respondent Nos.3 and 4.
HEMANT GUPTA, J.
The present appeal under Clause X of the Letters Patent is
against the judgment dated 29.11.1991 passed by learned Single Judge of
this Court in a writ petition filed by the appellants.
The appellants are the Inspectors of Factories governed by
Punjab Labour Service (Class-I and Class-II) Rules, 1955 (hereinafter
called as ‘the Rules’), framed under proviso to Article 309 of the
Constitution of India. The appellants are degree-holders and were
directly recruited to the post of Inspectors of Factories. Though the
appellants have also made grievance in respect of respondent No.5
recruited alongwith appellant No.1 against SC category in the writ
petition, but the said grievance doesn’t subsists and no argument was
raised in the present appeal.
L.P.A.No. 842 of 1992 2
The appellants have averred that respondent Nos.3 and 4 were
not qualified to be appointed to the post of Inspectors of Factories under
the Rules. Respondent No.-3 possess the degree in Chemical
Engineering and respondent No.4 in Civil Engineering, but under the
Rules a degree-holder in Mechanical Engineering or Electrical
Engineering alone is competent to be appointed as Inspector of Factories.
The aforesaid respondents were appointed as Inspectors of Factories in
June 1971 against ex-cadre posts, which are created by an order dated
12.2.1970.
In the seniority list circulated on 23.10.1974, respondent Nos.3
and 4 were reflected as senior to the appellants. The representation by
the appellants against the said seniority list was accepted. The appellants
were shown senior to respondent Nos.3 and 4. Subsequently, the said
respondents were brought into cadre from the date of issue of the
seniority list i.e. 15.10.1974/23.10.1974. It is the case of the appellants
that respondent Nos.3 and 4 could not be brought into cadre by virtue of
executive order without amending Statutory Rules but since respondent
Nos.3 and 4 are placed junior to the appellants, they had no grievance at
that time.
Vide notification dated 11.9.1978 (Annexure P-4), the Rules
were amended retrospectively w.e.f. 12.2.1970 so as to make graduates in
Civil and Chemical Engineering eligible for appointment as Inspectors of
Factories. After the aforesaid amendment, respondent Nos.3 and 4 were
considered senior to the appellants for the purposes of promotion to the
post of Deputy Chief Inspectors of Factories, which fell vacant on
L.P.A.No. 842 of 1992 3
1.11.1978. The said action of the State Government was challenged by
the appellants in CWP No.5134 of 1978. The writ petition was allowed
vide judgment reported as Subhash Chander Avasthi and Others Vs.
State of Punjab and Others 1992(1) SLR 596, when the following order
was passed :
“The seniority of the petitioners vis-a-vis respondent Nos.3 and
4 was thus rightly determined by the Government vide
Annexure P-1 placing the latter at the bottom and the
Government is not justified in treating them (respondent Nos.3
and 4) as senior to the petitioners. However, I cannot restrain
myself from observing that by treating the two posts held by
respondent Nos.3 and 4 as ex-cadre posts, a great hardship
and injustice has been caused to them. As it is not possible in
these proceedings to give any relief, they may approach the
Government to relief them of this hardship by confirming them
from an appropriate date.”
On 15.1.1982, the Rules were repealed with the promulgation
of Punjab Labour (Class-II) Service Rules 1982, (hereinafter called as
‘1982 Rules’). The said Rules contemplate degree in Chemical and Civil
Engineering as the academic qualification for recruitment to the post of
Inspector of Factories. The two ex-cadre posts created on 12.2.1970 were
also included in the cadre of Inspector of Factories with effect from the
date of creation of the posts. 1982 Rules have been amended on
5.11.1982 inserting proviso to Rule 3. Effect of insertion of such proviso
is that respondent Nos.3 and 4 are treated to be in the cadre of Inspectors
L.P.A.No. 842 of 1992 4of Factories from the date of their initial appointments.
On behalf of the State, it has been averred that respondent
Nos.3 and 4 were taken into service as Inspectors of Factories, Chemical
Engineering and Civil Engineering on 3.6.1971 and 7.6.1971 i.e. earlier
than the appointment of appellants as Inspectors of Factories. It is also
pointed out that two posts, one Inspector of Factories (Civil Engineering)
and another Inspector of Factories (Chemical Engineering) were created
on 12.2.1970. Such posts were created for the reason that different type
of industries are coming up in the State. It was felt that Inspector of
Factories with qualification in Chemical and Civil Engineering would be
necessary for the proper inspection of Factories with a view to safeguard
the interest of workers employed therein. It is averred that Rules were
amended retrospectively to give justice to respondent Nos.3 and 4 and the
notification amending the Rules was issued after following the prescribed
procedure and that the posts have been including in the Rules from the
date of creation of the posts. Such Rules have been amended by giving
justice to the entire class of Officers i.e. Inspector of Factories with
qualification of Civil and Chemical Engineering graduates. Still further
the Rules have been amended keeping in view the hardship which
respondent Nos.3 and 4 were suffering, which was even noticed by this
Court in the earlier writ petition filed by the appellants.
The learned Single Judge dismissed the writ petition, inter-alia,
holding that inclusion of certain posts in the cadre of particular service
cannot be said to mean that the initial appointment as such was illegal
and irregular. It is open to the authorities to change the cadres including
L.P.A.No. 842 of 1992 5the posts of one cadre into other in the exigency of administration.
Respondent Nos.3 and 4 had degrees in Civil and Chemical Engineering
and were getting the same pay scale and are appointed prior to the
appellants. The learned Single Judge also held that the amendment in the
Rules cannot be said to be arbitrary as the proviso has been added simply
with a view to ameliorate the lot of respondent Nos.3 and 4, who had
come into service prior to the appellants and are yet shown juniors to
them. With such finding recorded, the writ petition was dismissed.
The grievance of the appellants is that by virtue of such
amendments in 1982 Rules, respondent Nos.3 and 4 have been given
seniority over them and that such amendment is wholly illegal and
against the provisions of Articles 14 and 16 of the Constitution of India.
It is argued that the appellants have been shown senior to respondent
Nos.3 and 4 after 13 years and by virtue of amendment in the Rules with
retrospective effect, the service career of the appellants has been
adversely affected. It is argued that the insertion of proviso vide
notification dated 5.11.1982 is retrospective in operation and, therefore,
the vested rights of the appellants to be senior to respondent Nos.3 and 4
cannot be taken away by such amendment. It is also contended that
proviso has been apended to 1982 Rules though substantially the proviso
has the effect of amending 1955 Rules. It is, thus, contended that
repealed Rules cannot be amended. Therefore, the rights of the
appellants for promotion cannot be tinkered with by the respondents.
Such action is illegal and not sustainable.
L.P.A.No. 842 of 1992 6
Mr. Rajiv Atma Ram, learned Senior Advocate, representing
respondent Nos.3 and 4, has vehemently argued that the Rules can be
amended retrospectively and that neither the seniority nor the chances of
promotion are the vested rights. Since, neither the seniority nor the
further chances of promotion are the vested rights, therefore, the
appellants cannot impugn the amendments effected, which were
incorporated so as to remedy the hardship caused to respondent Nos.3
and 4 on account of omission of the State Government in making
appointments without suitably amending the Rules. Reliance is placed
upon Union of India and Others Vs. Dr. S. Krishna Murthy and Others
(1989) 4 Supreme Court Cases 689 and Chairman, Railway Board and
Others Vs. C.R.Rangadhamaiah and Others etc. (1997) 6 SCC 623.
We have heard learned counsel for the parties at length. In
B.S.Yadav and Others Vs. State of Haryana and Others AIR 1981 SC
561, the Hon’ble Supreme Court held that the proviso to Article 309
provides that until the State Legilature passes law on the particular
subject, it shall be competent for the Governor of the State to make Rules
in case of services and posts in connection with the affairs of the State.
The Governor thus steps in when the legislature does not act. It was held
to the following effect :
44. …..The power exercised by the Governor under the proviso
is thus a power which the legislature is competent to exercise
but has in fact not yet exercised. It partakes of the
characteristics of the legislative, not executive, power. It is
legislative power…..
L.P.A.No. 842 of 1992 7
45. That the Governor possesses legislative power under our
Constitituion is incontrovertible and, therefore, there is
nothing unique about the Governor’s power under the proviso
to Article 309 being in the nature of a legislative power…..
…..The power of the Governor under the proviso to Article 309
to make appropriate rules is of the same kind. It is legislative
power. Under Article 213, he substitutes for the legislature
because the legislature is in recess. Under the proviso to
Article 309, he substitutes for the legislature because the
legislature has not yet exercised its power to pass an
appropriate law on the subject.
76. ….. Since the Governor exercises a 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 as in this case.
In Dr. S. Krishna Murthy’s case (supra), the challenge was to
Rule 3(2)(d) of Indian Forest Service (Regulation of Seniority) Rules,
1968, and similar Rule of Indian Police Service (Regulation of Seniority)
Rules, 1954. By virtue of the impugned Rules, the past service rendered
by Emergency Commissioned Officers and Short Service Commissioned
Officers in the Army, was to be taken into consideration for determining
L.P.A.No. 842 of 1992 8year of allotment. The argument that the impugned Rules take away the
vested rights of the respondents of seniority and, consequently, pre-
judicially affects their rights, was negatived. It was found that seniority
of the respondents is not taken away or interfered with by the impugned
Rules. The year of allotment of the respondents remain the same as the
impugned Rules only provided for weightage to Emergency
Commissioned Officers and Short Service Commissioned Officers, for
their past services in the Army during the Emergency period. The Court
held to the following effect :
17. …… It is submitted by the learned counsel that as the
respondents have acquired a particular seniority, Section 3 of
the Act as amended, if read as suggested by the army officers,
would contravene the fundamental rights of the respondents.
This extreme contention is not sustainable on the face of it, for
even assuming that the seniority of the respondents or their
chances of promotion are affected by the impugned Rules,
surely it cannot be said that there has been a contravention of
the fundamental rights of the respondents. Nobody has any
fundamental right to a particular seniority or to any chance of
promotion.
In Indian Administrative Service (S.C.S.) Association, U.P.
and Others Vs. Union of India and Others 1993 (1) SLR 69 (S.C.), the
amendment to All India Services (Regulation of Seniority) Rules, 1987
was upheld as it was found that the amendment has been incorporated to
prevent injustice to the officers recruited and promoted earlier than the
L.P.A.No. 842 of 1992 9officers promoted later. It was also held that there is distinction between
the right and interest. No one has a vested right to promotion or
seniority, but an officer has interest to seniority acquired by working out
the Rule. It was further held that sub Section 1-A of Section 3-A of All
India Services Act enjoins the authorities not to give retrospective effect
to such a Rule or Regulation so as to avoid “prejudicial affect or the
interest” of any person to whom such Rule may be applicable. The
operation of law may have the effect of postponing the future
consideration of the claim or legitimate expectation of the interest for
promotion. It was held that there is no vested right to seniority and it is
variable and defeasible by operation of law.
In C.R.Rangadhamaiah’s case (supra), a Constitution Bench
held that once a person joins service under the Government, the
relationship between him and the Government is in the nature of status
rather than contractual and the terms of his service while he is in
employment are governed by Statute or Statutory Rules, which may be
unilaterally altered without the consent of the employee. It was held that
though the Rules framed under proviso to Article 309 of the Constitution
can have prospective or retrospective operation, but the said Rules may
be open to challenge on the ground of violation of the provisions of the
Constitution including the fundamental rights contained in Part-III of the
Constitution. It was held that a Rule which seeks to reverse from an
anterior date a benefit which has been granted or availed i.e. promotion or
pay scale, can be assailed as being violative of Articles 14 and 16 of the
Constitution to the extent it operates retrospectively. The judgments
L.P.A.No. 842 of 1992 10striking down the provisions giving retrospective operation so as to have
an adverse effect in the matter of promotion and seniority were found to
be not correct law. It was held to the following effect :
24. …… In many of these decisions the expressions “vested
rights” or “accrued rights” have been used while striking down
the impugned provisions which had been given retrospective
operation so as to have an adverse effect in the matter of
promotion, seniority, substantive appointment etc. of the
employees. The said expressions have been used in the context
of a right flowing under the relevant rules which was sought to
be altered with effect from an anterior date and thereby taking
away the benefits available under the rule in force at that time.
It has been held that such an amendment having retrospective
operation which has the effect of taking away a benefit already
available to the employee under the existing rule is arbitrary,
discriminatory and violative of the rights guaranteed under
Articles 14 and 16 of the Constitution. We are unable to hold
that these decisions are not in consonance with the decisions in
Roshan Lal Tandon, B.S.Yadav and Raman lal Keshav Lal
Soni.
The Constitution Bench in S.S.Bola Vs. B.D.Sardana (1997) 8
SCC 522, examined the amendment in the Rules affecting seniority of the
members of service by way of enactment by State giving retrospective
effect. It was held that there is distinction between right and interest.
Seniority is a facet of interest and is governed by the existing Rules. No
L.P.A.No. 842 of 1992 11one has a vested right to promotion or seniority. But a Officer has a
interest to seniority acquired by working out the Rules. Right to be
considered for promotion is a Rule prescribed by conditions of service. A
Rule which affects the promotion of a person relates to conditions of
service. The Rule merely affecting the chances of promotion cannot be
regarded as varying the conditions of service. Chances of promotion are
not conditions of service and a Rule which affects the chances of
promotion does not amount to change in the conditions of service.
Hon’ble Mr. Justice Sagir Ahmed, concurring with the above majority
view held to the following effect :
199. To the said effect the judgment of this Court in the case of
State of Punjab V. Kishan Das 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.
200. 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 get delayed
thereby. It was urged by Mr. Sachar and Mr. Mahabir Singh
appearing for the direct recruits that the effect of
L.P.A.No. 842 of 1992 12redetermination of the seniority in accordance with the
provisions of the Act is not only that the direct recruits lose a
few places of seniority in the rank of Executive Engineer but
their future chances of promotion are greatly jeopardised 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 a government servant are not a condition of
service. In the case of State of Maharashtra V. Chandrakant
Anant Kulkarni, this Court held :
“16. Mere chances of promotion are not conditions of
service 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.”
205. In the aforesaid premises, it must be held that the direct
recruits did not have a vested right nor had any right 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 accured right. Thus there is no bar
for the legislature to amend the law in consequence of which
the inter se position in the rank of Executive Engineer might
get altered.
L.P.A.No. 842 of 1992 13
A perusal of the record would show that the Rules as initially
framed did not contemplate direct recruitment to the post of Inspector of
Factories from amongst candidates having degree in Civil and Chemical
Engineering. Two posts of Inspectors of Factories were created on
12.2.1970. Respondent Nos.3 and 4 were appointed against said posts of
Inspectors of Factories by the State Government in consultation with
Punjab Public Service Commission. Thus, respondent Nos.3 and 4 were
appointed after complying with the procedure required for making
appointments against the public posts. It was on 15.10.1974 (Annexure
P-1), the ex-cadre posts held by respondent Nos.3 and 4 were brought on
the cadre of Punjab Labour Service (Class I and II). On 29.12.1975
(Annexure P-3), the temporary posts of Inspector of Factories (Civil and
Chemical) were converted into permanent posts as well. The Rules were
amended on 11.9.1978 (Annexure P-4) w.e.f. 12.2.1970 i.e. the date when
two ex-cadre posts were created temporarily to be filled up from
candidates having educational qualification of Chemical and Civil
Engineering to the post of Inspector of Factories.
It appears that respondent Nos.3 and 4 were appointed as
Inspectors of Factories by the State Government without making suitable
amendments in the Rules. The inaction or omission of the State
Government has led to seniority dispute between the parties. After
amendment in the year 1978 contemplating that the posts of Inspectors of
Factories can be filled up with educational qualification of degree in Civil
and Chemical Engineering, the State Government treated respondent
Nos.3 and 4 senior to the appellants. Such action was found to be
L.P.A.No. 842 of 1992 14
unjustified in the earlier writ petition filed by the appellants. It was also
noticed that if two posts held by respondent Nos.3 and 4 are treated as ex-
cadre posts, it shall cause great hardship and injustice to the said
respondents. It was the said injustice and hardship which was sought to
be removed by inserting the proviso vide notification dated 5.11.1982.
The appellants have no vested rights either in maintaining seniority or in
the chances of promotion as held by the judgments aforesaid. The date
of appointment of the appellants has not been altered. What has been
altered is placement of respondent Nos.3 and 4, that too from the date,
they were actually appointed. Therefore, the mere fact that respondent
Nos.3 and 4 now rank senior to the appellants, cannot be said to be
illegal, arbitrary or discriminatory violating any of the fundamental rights
of the appellants.
The other argument that the amendment on 5.11.1982 carried
out in 1982 Rules in fact amends 1955 Rules, is again misconceived. The
amendment has the effect of rectifying an apparent omission. The
mistake was sought to be rectified as 1982 Rules alone were in operation
at that time. Therefore, it cannot be said that action in giving
retrospective effect to the Rules lacks any legislative incompetence.
In view of above discussion, we do not find any merit in the
argument raised by the learned counsel for the appellants. Consequently,
the appeal is dismissed with no order as to costs.
(T.S.THAKUR) (HEMANT GUPTA)
CHIEF JUSTICE JUDGE
03.07.2009
Vimal