{"id":180517,"date":"1995-09-12T00:00:00","date_gmt":"1995-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-r-bhagwat-ors-vs-the-state-of-mysore-on-12-september-1995"},"modified":"2019-02-18T06:12:38","modified_gmt":"2019-02-18T00:42:38","slug":"s-r-bhagwat-ors-vs-the-state-of-mysore-on-12-september-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-r-bhagwat-ors-vs-the-state-of-mysore-on-12-september-1995","title":{"rendered":"S.R. Bhagwat & Ors vs The State Of Mysore on 12 September, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.R. Bhagwat & Ors vs The State Of Mysore on 12 September, 1995<\/div>\n
Equivalent citations: 1996 AIR 188, \t\t 1995 SCC (6)\t 16<\/div>\n
Author: M S.B.<\/div>\n
Bench: Majmudar S.B. (J)<\/div>\n
           PETITIONER:\nS.R. BHAGWAT & ORS.\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF MYSORE\n\nDATE OF JUDGMENT12\/09\/1995\n\nBENCH:\nMAJMUDAR S.B. (J)\nBENCH:\nMAJMUDAR S.B. (J)\nBHARUCHA S.P. (J)\nFAIZAN UDDIN (J)\n\nCITATION:\n 1996 AIR  188\t\t  1995 SCC  (6)\t 16\n JT 1995 (6)   444\t  1995 SCALE  (5)270\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nS.B. Majmudar, J.\n<\/p>\n
     William Macpeace  Thakare in  his lectures\t on “English
\nHumorists of  18th Century”  spoke of Jonathan Swift working
\nin the\thousehold of  Sir William  Temple in  the  following
\nterms : “His servility was so boisterous that it looked like
\nindependence”. As  will be  highlighted in this judgment the
\nservility of judgment-debtor, State of Mysore, the precursor
\nof the\tState of  Karnataka was\t eqally boisterous  when  it
\ntried to cast off its judgment debtor’s role by resorting to
\nlegislative independence, which as will be demonstrated, has
\nremained a legally futile attempt.\n<\/p>\n
     This is a petition under Article 32 of the Constitution
\nof India.  The petitioners  have brought  in  challenge\t the
\nprovisions of  the Mysore  Ordinance 1\tof 1973, namely, The
\nMysore State  Civil Services  (Regulation of  Promotion, Pay
\nand Pension) Ordinance No. 1 of 1973. By an amendment to the
\npetition they  have also brought in challenge the provisions
\nof  the\t  Karnataka  State  Civil  Services  (Regulation  of
\nPromotion, Pay\tand Pension) Act, 1973 (hereinafter referred
\nto  as\t `the  impugned\t  Act’)\t which\treplaced  the  State
\nOrdinance. At the stage of arguments learned counsel for the
\npetitioners concentrated  his attack  on the  provisions  of
\nSub-sections (2),  (3), (4),  (5), (6), and (8) of Section 4
\nas well\t as Section  11 Sub-section (2) of the Act in so far
\nas they\t conflicted with  the order of the High Court, which
\nhad become final between the parties. It is not necessary to
\nrefer  hereinafter   to\t the  provisions  of  the  erstwhile
\nOrdinance which has been replaced by the Act, the provisions
\nof which  are brought  on the  anvil  of  scrutiny  in\tthis
\npetition.\n<\/p>\n
Background Facts
\n     In order  to highlight the grievance of the petitioners
\nagainst the  impugned provisions  of the Act it is necessary
\nto note\t at the\t outset the  facts leading to this petition.
\nPetitioners Nos. 1 to 5 were civil servants of the erstwhile
\nState of Hyderabad and Bombay. Their services stood allotted
\nto the\tnew State  of Mysore under Section 115 of the States
\nReorganisation Act,  1956 (hereinafter\treferred to  as\t the
\n`Reorganisation Act’).\tThe new\t State of  Mysore was formed
\nwith effect  from 1.11.1956  under  the\t provisions  of\t the
\nReorganisation Act, enacted by the Parliament in exercise of
\nits powers  under Articles  3 and  4 of\t the Constitution of
\nIndia. Section\t115 of\tthe Reorganisation  Act provided for
\nallotment  of\tcivil  servants\t  of  the  erstwhile  States
\nterritories of which were transferred to the successor State
\nby the\tprovisions of Part II of the Act and accordingly the
\npetitioners’ services  stood statutorily allotted to the new
\nState of  Mysore. In  this context  the Parliament conferred
\nthe  power   of\t integration  of  services  on\tthe  Central
\nGovernment  under  Section  115(5)  of\tReorganisation\tAct.
\nAccordingly  integration   of  services\t  took\teffect\tfrom
\n1.11.1956.\n<\/p>\n
     After the\treorganisation of  the\tStates\tthe  Central
\nGovernment for purposes of effecting integration of services
\nlaid down  the principles  relating to equation of posts and
\nthe preparation\t of seniority  lists. The Central Government
\nalso directed  the State  Government to decide provisionally
\nthe equation  of posts and also to fix seniority and to call
\nfor representations  from the  aggrieved officials,  to send
\nthe same  for final  decision by the Government of India. In
\npursuance of  the directions  of the Central Government, the
\nState Government  took its  own time  to prepare provisional
\nInter-State Seniority  Lists and to call for objections. The
\nState Government also directed the appointing authorities of
\nthe new\t State of  Mysore to  make provisional promotions on
\nthe basis  of the  provisional inter-State  Seniority  Lists
\nsubject to  the clear  condition that  promotion  should  be
\nrevised\t in   accordance  with\tthe  ranking  in  the  Final
\nSeniority Lists to be effective from 1.11.1956 as decided by
\nthe Government\tof India  in exercise  of its  powers  under
\nSection 115(5) of the Reorganisation Act. Sub-section (7) of
\nSection 115  of\t the  Reorganisation  Act  laid\t down  that,
\n`nothing in this section shall be deemed to affect after the
\nappointed day  the operation  of the provisions of Chapter I
\nof  Part   XIV\tof  the\t Constitution  in  relation  to\t the
\ndetermination  of  the\tconditions  of\tservice\t of  persons
\nserving in  connection with  the affairs of the Union or any
\nState, provided\t that the  conditions of  service applicable
\nimmediately before  the appointed  day to  the case  of\t any
\nperson referred\t to in\tsub-section (1)\t or sub-section\t (2)
\nshall not  be varied  to his  disadvantage except  with\t the
\nprevious approval of the Central Government.’
\n     On account\t of aforesaid  integration  of\tservices  of
\nemployees of States which got reorganised as aforesaid, till
\nthe inter-se  seniority of  the concerned allotted employees
\nof  such  States  was  finally\tdetermined  by\tthe  Central
\nGovernment as  required by Sub-section (5) of Section 115 of
\nReorganisation Act, the reorganised States like the State of
\nMysore were  permitted to  act on  the basis  of provisional
\nseniority list of such employees and to effect promotions on
\nthat basis  so that  the administration\t of the\t reorganised
\nStates might  not suffer.  But that was subject to the rider
\nthat the  said provisional  list was  subject to alterations
\nwhen final  list was  prepared and  once that  happened\t the
\nconcerned State\t Government had\t to give effect to the final
\nlist. The  said principle was laid down by this Court in the
\ncase of G.S. Ramaswamy etc. etc. v. The Inspector General of
\nPolice, Mysore\tState, Bangalore AIR 1966 SC 175 at page 180
\nas under :\n<\/p>\n
     “The next\tpoint that  has been urged is
\n     that in  any case till final integration
\n     of\t  service   was\t  made,\t  the\tState
\n     Government was not entitled to take into
\n     account the  provisional  list  of\t sub-
\n     inspectors and  could  only  proceed  to
\n     give promotions  and to  make  transfers
\n     region-wise according to the eligibility
\n     lists of  former States  from which  the
\n     territories came to the new State and if
\n     that  was\tdone  the  petitioners\tbeing
\n     senior in\ttheir  region  could  not  be
\n     reverted………… We  can see nothing
\n     in\t law   which   prevents\t  the\tState
\n     Government from  proceeding according to
\n     the provisional list after such list was
\n     prepared. We  are of  opinion  that  the
\n     view taken\t by the\t Mysore High Court in
\n     the earlier  writ\tpetitions  after  the
\n     framing  of  the  provisional  seniority
\n     list is correct and the State Government
\n     would be  entitled to  act on  that list
\n     subject of\t course to  this that  if the
\n     provisional list  is in  any way altered
\n     when the  final list  is  prepared,  the
\n     State Government  would give  effect  to
\n     the final list.”<\/p><\/blockquote>\n
     Petitioners Nos.1,\t 2 and\t4 had  joined service in the
\nformer State  of  Bombay  and  were  on\t 31.10.1956  in\t the
\ncategory of  Deputy Conservator\t of Forests. Petitioner No.3
\nwas also  a Deputy  Conservator of  Forests  in\t the  former
\nHyderabad State.  In the year 1957 the State Government made
\nprovisional equation.  The posts  of Senior  Conservator  of
\nForests and  Assistant Conservator  of Forests, were equated
\nwith the  post of  Deputy Conservator of Forests coming from
\nHyderabad  and\t Bombay.  This\t was  objected\t to  by\t the
\npetitioners and others. The State Government again published
\na list\tin  1960  with\tslight\tmodification.  However,\t the
\nCentral Advisory  Committee to whom the representations were
\nforwarded as  per  the\tprovisions  of\tSub-section  (5)  of
\nSection\t 115   of  the\t Reorganisation\t Act,  accepted\t the
\npetitioners’ contentions.  As a\t result in category III only
\nthe officials,\tnamely, Deputy\tConservator  of\t Forests  of
\nHyderabad and  Bombay and  Senior Assistant  Conservator  of
\nForests from  Mysore were  included. The Government of India
\naccepted the  said equation and communicated it to the State
\nGovernment on 7.11.1962.\n<\/p>\n
     Thereafter several writ petitions were presented before
\nthe Mysore  High Court\tbeing Writ  Petition No.2186 of 1963
\nand others.  They were\tdisposed of  by the  High Court. The
\nmain judgment  was rendered  in Shankariah v. Union of India
\n1965(2) Mysore\tLaw Journal  40.  The  correctness  of\tthis
\ndecision was  challenged before\t this Court. But the appeals
\nwere dismissed.\t Even  thereafter  in  accordance  with\t the
\ndirections of  the  Central  Advisory  Committee  the  Union
\nGovernment   again   considered\t  the\tmatter\t and   fresh
\nnotifications were  issued in  May 1969. These notifications
\nwere on\t the same line as the earlier notifications. A fresh
\nbatch of  writ petitions  was filed before the High Court of
\nMysore\twhich  dismissed  them\tby  order  dated  21.9.1971.
\nSpecial Leave  Petitions against  this\tdecision  were\talso
\ndismissed  by\tthis  Court   on  22.12.1972.\tThus   final
\nadjudication was made regarding the claim of petitioners and
\nothers similarly situated for equation and seniority.\n<\/p>\n
     In\t the  background  of  the  aforesaid  settled  legal
\nposition the  petitioners  claimed  that  though  they\twere
\nsenior in  the final  seniority lists  to many others, their
\njuniors had  got promoted  in the  meantime on\tthe basis of
\nhigher ranking\tin the\tprovisional seniority list which was
\nearlier operative  till\t it  got  superseded  by  the  final
\nseniority list\tas  aforesaid.\tAs  their  claim  for  being
\ngranted deemed\tdates of  promotions with  all consequential
\nbenefits was  not accepted  by\tthe  State  of\tMysore,\t the
\npetitioners filed  writ petitions  before the  High Court of
\nKarnataka being Writ Petitions Nos. 2598 of 1970 and others.
\nAll these  five writ petitions filed by the petitioners came
\nto be  allowed by  a Division  Bench of\t the High  Court  of
\nMysore at  Bangalore by\t an order dated 21.9.1971. The State
\nof Mysore  was the  first respondent  in those petitions and
\nwhich is  the main  respondent in the present writ petition.
\nWhile allowing\tthese writ  petitions the  Division Bench of
\nthe High  Court granted\t relief to  the petitioners  in\t the
\nfollowing terms :\n<\/p>\n
     “We, therefore,  make a  common order in
\n     all these\twrit petitions\tthat the case
\n     of\t each\tof   these   petitioners   be
\n     considered for  promotion\tto  the\t post
\n     next above\t the cadre of the post he was
\n     holding on\t 1.11.1956 as  on the date on
\n     which any\tone of\this juniors according
\n     to the  final inter State Seniority List
\n     was for  the first\t time so promoted and
\n     that if  he is found fit and promoted he
\n     be given all including consideration for
\n     promotion to higher cadres and financial
\n     benefits. Time three months.”<\/p><\/blockquote>\n
     It is  not in dispute between the parties that pursuant
\nto the\taforesaid direction  issued by the Division Bench of
\nthe High Court the respondent-State has considered the cases
\nof all\tthe petitioners\t for being  granted deemed  dates of
\npromotions and\tthey have  been given  such deemed  dates of
\npromotions. The aforesaid decision of the Division Bench has
\nbecome final  between the parties. As consequential monetary
\nbenefits  on   the  grant   of\tdeemed\t promotions  to\t the
\npetitioners as\tdirected by  the aforesaid decision were not
\nmade  available\t to  the  petitioners  they  filed  contempt
\npetitions in  the High\tCourt. These contempt petitions were
\ngot adjourned from time to time before the High Court by the
\nrespondent-State.  In\tthe  meantime  the  respondent-State
\nresorted to  its legislative  powers and issued the impugned
\nOrdinance which ultimately culminated into the impugned Act.
\nBy the\timpugned provisions of the Ordinance and the Act the
\nactual financial  benefits directed  to be made available to
\nthe petitioners pursuant to the orders of the Division Bench
\nof the\tHigh Court  which had  become final are sought to be
\ntaken away  as can  be seen from the scrutiny of the Act. It
\nis under these circumstances that the petitioners filed this
\npetition under Article 32 for getting a declaration that the
\nimpugned provisions  in so  far as  they tried to confiscate
\nthe financial  benefits made  available to them by the writs
\nof mandamus  issued by\tthe High  Court are null and void as
\nthey amount  to legislative  over-ruling of binding judicial
\ndecisions and  seek to\tdeprive them  of  their\t fundamental
\nrights guaranteed under the Constitution.
\nRival Contentions
\n     Learned counsel  for the  petitioners in support of his
\nsubmission has\trelied upon  a number  of decisions  of this
\nCourt with a view to submitting that the impugned provisions
\nclearly seek  to nullify final binding dicisions of the High
\nCourt against the State and in favour of the petitioners. It
\nis an admitted position that common decision of the Division
\nBench of  the High  Court, has not been challenged higher up
\nby the\trespondent-State. Learned  senior  counsel  for\t the
\nrespondent Shri\t Madhava Reddy\ton  the\t other\thand  fairly
\nsubmitted  that\t  he  could  not  support  provisions  which
\nattempted  to\tbypass\tthe  High  Court’s  directions.\t His
\nprincipal  submission,\t however,  was\t that  consequential
\nfinancial benefits  directed by the High Court did not cover
\nmonetary benefits flowing from deemed promotions. He also in
\npassing submitted  that the  foundation of  the\t High  Court
\njudgment was  displaced by  the impugned  Act but ultimately
\ndid not\t pursue the  point any\tfurther. Hence\twe need\t not
\ndilate on that additional aspect any further.
\nConclusion and Reasons for the same
\n     Having  given   our  anxious   consideration  to  rival
\ncontentions we have reached the conclusion that the impugned
\nprovision of  the Act, namely, Section 11 Sub-section (2) is
\nclearly ultra  vires the  powers of the State Legislature as
\nit encroaches upon the judicial field and tries to over-rule
\nthe  judicial  decision\t binding  between  the\tparties\t and
\nconsequently the  relevant sub-sections\t of Section  4 which
\nare also in challenge will have to be read down as indicated
\nhereinafter in\tthis  judgment.\t Before\t we  advert  to\t the
\nrelevant provisions of the impugned Karnataka Act it will be
\nappropriate to\tkeep in\t view  the  settled  legal  position
\ngoverning the present controversy.\n<\/p>\n
     It is now well settled by a catena of decisions of this
\nCourt that  a binding  judicial\t pronouncement\tbetween\t the
\nparties cannot\tbe made\t ineffective with  the\taid  of\t any
\nlegislative power by enacting a provision which in substance
\nover-rules such\t judgment and  is not  in  the\trealm  of  a
\nlegislative  enactment\t which\tdisplaces   the\t  basis\t  or
\nfoundation of  the judgment and uniformly applies to a class
\nof persons  concerned with  the entire\tsubject sought to be
\ncovered by such an enactment having retrospective effect. We
\nmay only refer to two of these judgments.\n<\/p>\n
     A Constitution  Bench of  this Court  in  the  case  of
\nCauvery Water  Disputes Tribunal  (1993 Supp. (1) SCC 96(II)
\nhad to\tpronounce on the validity of Karnataka Kauvery Basin
\nIrrigation Protection  Ordinance, 1991\tby which  an interim
\norder passed  by  a  statutory\tTribunal  supported  by\t the
\ndecision of this Court dated 26th April 1991 which had ruled
\nthat the  Tribunal had\tpower to  consider the\tquestion  of
\ngranting interim  relief since\tit was specifically referred
\nto it,\twas sought to be displaced. Sawant, J., speaking for
\nthe Constitution  Bench held  that the\tsaid provisions were
\nunconstitutional and  ultra vires.  In paragraph  76 of\t the
\nReport the following observations were made :\n<\/p>\n
     “The principle  which emerges from these
\n     authorities is  that the legislature can
\n     change the\t basis on which a decision is
\n     given by  the Court  and thus change the
\n     law in  general,  which  will  affect  a
\n     class of persons and events at large. It
\n     cannot, however, set aside an individual
\n     decision inter  partes and\t affect their
\n     rights and\t liabilities alone.  Such  an
\n     act  on  the  part\t of  the  legislature
\n     amounts to exercising the judicial power
\n     of the  State and\tto functioning\tas an
\n     appellate court or tribunal.”<\/p><\/blockquote>\n
     In the case of G.C. Kanungo V. State of Orissa (JT<\/a> 1995
\n(4) SC\t589) a Division Bench of this Court speaking through
\nVenkatachala,  J.,   had  to   consider\t the   validity\t  of
\nArbitration (Orissa Second Amendment) Act, 1991 which sought
\nto nullify  the\t awards\t made  by  the\tSpecial\t Arbitration
\nTribunals constituted  under  the  1984\t Amendment  Act,  in
\nexercise of the power conferred upon them by the Act itself.
\nStriking down  the provisions  as ultra\t vires\tand  illegal
\nVenkatachala,  J.,   made  the\t following  observations  in
\nparagraph 28 of the Report :\n<\/p>\n
     “Thus, the\t impugned 1991\tAmendment Act
\n     seeks to  nullify the awards made by the
\n     Special\t  Arbitration\t    Tribunals
\n     constituted  under\t the  1984  Amendment
\n     Act, in  exercise of the power conferred
\n     upon them\tby that Act itself. When, the
\n     awards made under the 1984 Amendment Act
\n     by the  Special Arbitration Tribunals in
\n     exercise of  the  State  judicial\tpower
\n     conferred\tupon  them  which  cannot  be
\n     regarded as  those merged\tin  Rules  of
\n     Court  or\t judgments  and\t  decrees  of
\n     Courts, are  sought to  be nullified  by
\n     1991 Amendment  Act,  it  admits  of  no
\n     doubt  that  legislative  power  of  the
\n     State Legislature\tis used\t by  enacting
\n     impugned 1991  Amendment Act  to nullify
\n     or abrogate  the awards  of the  Special
\n     Arbitration Tribunals  by arrogating  to
\n     itself,  a\t  judicial  power.  [See  Re:
\n     Cauvery Water  Disputes Tribunal  (1991)
\n     Supp. 2  SCR 497]. From this, it follows
\n     that the  State Legislature  by enacting
\n     the 1991  Amendment Act  has  encroached
\n     upon the  judicial\t power\tentrusted  to
\n     judicial\t authority    resulting\t   in
\n     infringement of  a basic  feature of the
\n     Constitution –  the Rule  of Law.\tThus,
\n     when the  1991 Amendment  Act  nullifies
\n     the awards\t of the\t Special  Arbitration
\n     Tribunals,\t made\tin  exercise  of  the
\n     judicial power conferred upon them under
\n     the 1984  Amendment Act,  by encroaching
\n     upon the judicial power of the State, we
\n     have no  option but  to  declare  it  as
\n     unconstitutional having  regard  to  the
\n     well  settled   and   undisputed\tlegal
\n     position  that   a\t legislature  has  no
\n     legislative power\tto render ineffective
\n     the earlier judicial decisions by making
\n     a law  which simply declares the earlier
\n     judicial decisions\t as invalid  and  not
\n     binding, for  such powers, if exercised,
\n     would not be legislative power exercised
\n     by it,  but judicial  power exercised by
\n     it encoaching upon the judicial power of
\n     the State\tVested in a judicial Tribunal
\n     as\t the  Special  Arbitration  Tribunals
\n     under  1984   Amendment  Act.  Moreover,
\n     where the\tarbitral awards\t sought to be
\n     nullified under  the 1991\tAmendment Act
\n     are those\tmade by\t Special  Arbitration
\n     Tribunals\tconstituted   by  the\tState
\n     itself  under   1984  Amendment  Act  to
\n     decide arbitral  disputes to which State
\n     was a  party, it  cannot be permitted to
\n     undo such\tarbitral  awards  which\t have
\n     gone against  it, by  having recourse to
\n     its legislative  power for grant of such
\n     permission as  could result  in allowing
\n     the State, if nothing else, abuse of its
\n     power of legislation.”<\/p><\/blockquote>\n
     In view  of the aforesaid settled legal position let us
\nsee  how  far  the  impugned  provisions  of  the  Act\tbear
\nscrutiny.\n<\/p>\n
     We may note at the very outset that in the present case
\nthe High Court had not struck down any legislation which was
\nsought\tto   be\t re-enacted   after  removing\tany   defect
\nretrospectively by  the impugned  provisions. This is a case
\nwhere on  interpretation of existing law, the High Court had
\ngiven certain  benefits to  the petitioners.  That order  of
\nmandamus was  sought to be nullified by the enactment of the
\nimpugned provisions in a new statute. This in our view would
\nbe clearly impermissible legislative exercise.\n<\/p>\n
     As\t already  mentioned  earlier  the  petitioners\thave
\nattacked the  impugned provisions  only to  the extent\tthey
\nseek to\t deprive consequential financial benefits to them on
\nthe basis  of deemed promotion given to them by the State in
\ncompliance  with   the\tdecision   of  the   Division  Bench
\naforesaid. Consequently\t we will  examine the challenge only
\nfrom this  limited angle.  But before  we do  so it would be
\nappropriate to\trefer to the statutory settings in which the
\nimpugned provisions  saw the  light of the day. The impugned
\nKarnataka Act  11 of  1974 is  headed  by  very\t instructive
\nPreamble. It  will be profitable to glance at the provisions
\nof the Preamble to the impugned Act :\n<\/p>\n
\t  “An  Act   to\t  provide   for\t  the
\n     prospective    promotions\t  of\tcivil
\n     servants,\tand   to  regulate  the\t pay,
\n     seniority, pension\t and other conditions
\n     of service\t of  civil  servants  in  the
\n     State of  Karnataka including those that
\n     are allotted or deemed to be allotted to
\n     serve in  connection with the affairs of
\n     the  State\t of  Karnataka\tunder  or  in
\n     pursuance of  section 115\tof the States
\n     Reorganisation Act, 1956:\n<\/p><\/blockquote>\n
\t  Whereas on the basis of the ranking
\n     of civil  servants in the several inter-
\n     State  seniority\tlists\tprepared   in
\n     pursuance of  sub-section (5) of section
\n     115 of  the States\t Reorganisation\t Act,
\n     1956 (Central  Act 37  of 1956),  courts
\n     have    directed\t  the\t making\t   of
\n     retrospective  promotions\tto  statutory
\n     and other offices;\n<\/p><\/blockquote>\n
\t  And whereas  as held by the Supreme
\n     Court in Ajit Singh Vs. State of Punjab,
\n     reported in  All  India  Reporter\t1967,
\n     Supreme  Court  856  and  in  Income-Tax
\n     Officer,  Alleppy\t Vs.  N.C.  Ponnoose,
\n     reported in  All  India  Reporter\t1970,
\n     Supreme Court  385 appointments of civil
\n     servants to  offices in  which statutory
\n     functions\tare  exerciseable  cannot  be
\n     made with retrospective effect;\n<\/p><\/blockquote>\n
\t  And\t   whereas\tretrospective
\n     promotions involve\t payment of  sums  of
\n     money to  persons who have not worked in
\n     the  promotional\tposts\tof   officers
\n     concerned,\t to   the  detriment  of  the
\n     finances of the State, besides involving
\n     retrospective    reversions    rendering
\n     invalid\tthe    statutory    functions
\n     discharged by the persons reverted;\n<\/p><\/blockquote>\n
\t  And\t   whereas\tretrospective
\n     promotions preclude the determination of
\n     the suitability of the civil servants to
\n     hold the  promotional posts  or  offices
\n     and will enable them to continue in such
\n     posts or  offices only  on the ground of
\n     their   eligibility    to\t  promotions,
\n     resulting in  the\tcontinuance  of\t even
\n     unsuitable civil servants in promotional
\n     posts or  offices to  the\tdetriment  of
\n     public interest;\n<\/p><\/blockquote>\n
\t  And whereas  it  is  necessary  and
\n     expedient to  provide against  the\t said
\n     consequences:\n<\/p><\/blockquote>\n
\t  And whereas  the Central Government
\n     has given\tprevious approval  under  the
\n     proviso to\t sub-section (7)  of  section
\n     115 of  the States\t Reorganisation\t Act,
\n     1956   (Central\tAct   37   of\t1956)
\n     communicated in letter No. 5\/5\/73-SR (S)
\n     dated  22nd   February   1973   of\t  the
\n     Government\t    of\t   India,     Cabinet
\n     Secretariat, Department of Personnel and
\n     Administrative Reforms;”\n<\/p><\/blockquote>\n
A mere\tlook at\t the third  and fourth\tparagraphs  of\tthis
\npreamble shows\tthe legislative\t intent to  bypass the final
\ndirections contained  in the  Division Bench judgment of the
\nHigh Court  or any  other same\tfinal judgment\tin favour of
\nconcerned parties  that\t they  may  be\tgiven  retrospective
\npromotions  and\t all  monetary\tbenefits  pursuant  thereto.
\nKeeping in view the aforesaid key to the passing of the Act,
\nwe will\t turn now  to the relevant provisions of the Act. As
\nper sub-section\t (2) of\t Section 1  of the Act, Section 1 as
\nwell as Sections 2 to 10 and 12 shall be deemed to have come
\ninto force  on the  first day  of November 1956. It is to be
\nnoted that  1st November  1956, was  the date  on which\t the
\nStates Reorganisation  Act, 1956  was brought into force and
\nwhich date  under the  Reorganisation Act was treated as the
\nappointed day. Section 2 Clause (a) defines an `allottee’ to
\nmean, `a  Government servant allotted or deemed to have been
\nallotted to  serve in  connection with\tthe affairs  of\t the
\nState of  Karnataka under  or in pursuance of Section 115 of
\nthe States  Reorganisation Act,\t 1956  (Central\t Act  37  of
\n1956)’. It  is\tnecessary  to  note  that  State  of  Mysore
\nsubsequently got re-designated as State of Karnataka. As per
\nclause (c)  of Section\t2 `final  seniority list’ means, `an
\ninter-State  seniority\t list  of   allottees  prepared\t  in
\naccordance with\t the decisions\tof Central  Government under
\nthe provisions\tof sub-section\t(5) of\tSection 115  of\t the
\nStates Reorganisation  Act, 1956  (Central Act 37 of 1956)’.
\nClause (d) of Section 2 defines `inter-State seniority list’
\nto mean,  `an inter-State  seniority list prepared from time
\nto time,  on  the  basis  of  the  seniority  in  which\t the
\neligibility of\tan allottee  to promotion  to higher post or
\nposts is considered. As the petitioners are allottees within
\nthe meaning  of the  said term as defined by Section 2(a) we
\nmay straightaway  turn to  Section 4  of the Act which deals
\nwith such  allottees.  As  some\t parts\tof  sub-sections  of
\nSection 4  are brought\tin challenge in these proceedings it
\nwill be\t profitable to\treproduce entire  Section 4 with its
\nsub-sections at this stage :\n<\/p>\n
     “4.  Promotions, etc., of allottees -(1)
\n     Where the\tseniority of  an allottee  as
\n     specified in the provisional inter-State
\n     seniority list  in any  class of post or
\n     office has\t been altered  in  the\tfinal
\n     seniority list  relating to  that class,
\n     every promotion  made on  any date after
\n     the first\tday of\tNovember 1956, on the
\n     basis of  seniority-cum-merit, shall  be
\n     reviewed\twith\treference   to\t  the
\n     qualifications and other conditions laid
\n     down  in\tthe  rules   of\t  recruitment
\n     applicable at the relevant time for such
\n     promotion and  the ranking\t in the final
\n     seniority list assigned to the allottees
\n     in that  class of post or office. If any
\n     person senior  in rank  than the  person
\n     promoted is  held\tto  be\tsuitable  for
\n     promotion on  such date  (hereinafter in
\n     this section  referred to as the date of
\n     eligibility), an order shall, subject to
\n     section 9,\t be made  promoting the\t said
\n     person to\tofficiate in the said post or
\n     office with  effect from  a  prospective
\n     date to be specified in the order.<\/p><\/blockquote>\n
     (2)  As soon as may be, after the person
\n     promoted  under   sub-section   (1)   is
\n     declared\t to    have    satisfactorily
\n     completed the  period of  officiation in
\n     the promoted  post or  office  an\torder
\n     shall, subject  to section\t 9,  be\t made
\n     directing that  he shall  be entitled to
\n     initial  pay   on\tthe  date  of  actual
\n     promotion to the post or office as if he
\n     was holding the said post or office from
\n     the date  of eligibility  and drawn  the
\n     pay and allowances accordingly, but such
\n     person shall  not be entitled to payment
\n     of any  arrears for  the period prior to
\n     the date  of his  actual promotion.  His
\n     rank in the seniority list of persons in
\n     the class\tor grade  of service to which
\n     he is  promoted shall  be fixed as if he
\n     had been promoted to that class or grade
\n     of service on the date of eligibility.
\n     (3)  Where consequent upon the review of
\n     promotions made  under sub-section\t (1),
\n     it\t is  found  that  an  allottee,\t who,
\n     before the coming into force of sections
\n     3, 11  and 13  had been  promoted\tto  a
\n     higher class  or grade  of service found
\n     eligible for  promotion to\t that  higher
\n     class or  grade of\t service from  a date
\n     prior to  the date\t of actual  promotion
\n     and subject to section 9, is declared to
\n     have satisfactorily completed the period
\n     of officiation  in the  promoted post or
\n     office, an order shall be made directing
\n     that he shall be entitled to initial pay
\n     on the  date of  actual promotion to the
\n     post or  office as if he was holding the
\n     said post\tor office  from the  date  on
\n     which he is found eligible for promotion
\n     and  drawn\t  the  pay   and   allowances
\n     accordingly,  but\t he  shall   not   be
\n     entitled to  payment of  any arrears for
\n     the period\t prior to  the\tdate  of  the
\n     actual promotion. [Where, on such review
\n     he is  found eligible for promotion to a
\n     higher class  or grade of service from a
\n     date  subsequent  to  the\tdate  of  his
\n     actual promotion  to such class or grade
\n     of service,  his  pay  on\tthe  date  of
\n     eligibility shall\tbe refixed  as if  he
\n     had been  promoted on  such date  but he
\n     shall not be liable to refund the excess
\n     pay and  allowances drawn\tby him\tup to
\n     the date  of issue\t of the\t order fixing
\n     the date  of eligibility].\t His rank  in
\n     the seniority  list of  persons  in  the
\n     class or grade of service to which he is
\n     promoted shall  be fixed  as if  he  had
\n     been promoted  to that class or grade of
\n     service on the date on which he is found
\n     eligible for promotion.\n<\/p><\/blockquote>\n
     (4)  Where an  order is  made in respect
\n     of any  allottee under  sub-section  (2)
\n     or, as  the  case\tmay  be,  under\t sub-
\n     section (3),  and\tthe  ranking  in  the
\n     seniority\tlist   of  persons   in\t  the
\n     promoted class  or grade  of service, as
\n     fixed by such order, stands revised, the
\n     promotions made from that class or grade
\n     of service\t to the\t next higher class or
\n     grade of  service shall  be reviewed  in
\n     accordance\t with\tand  subject  to  the
\n     provisions\t of  sub-section  (1)  as  if
\n     reference therein to the final seniority
\n     list were\treferences to  the  aforesaid
\n     revised   seniority    list   and\t  the
\n     provisions\t of  sub-section  (2)  shall,
\n     mutatis mutandis, be applicable to every
\n     promotion so made.\n<\/p><\/blockquote>\n
     (5)  The provisions  of sub-section (4),
\n     mutatis  mutandis,\t  be  applicable   in
\n     respect of\t promotions of\tallottees  to
\n     the next higher classes or grades of the
\n     same service.\n<\/p><\/blockquote>\n
     (6)  The provisions  of sub-section  (3)
\n     shall, mutatis  mutandis, be  applicable
\n     in respect\t of review  of promotions  of
\n     allottees made  under  sub-sections  (4)
\n     and (5).\n<\/p><\/blockquote>\n
     (7)  Where in  respect of\tpromotions on
\n     the basis\tof  seniority-cum-merit\t from
\n     any class\tor grade  of service  to  the
\n     next higher  class or  grade of service,
\n     the rules of recruitment require service
\n     for a minimum period in the former class
\n     or\t grade\t to   become   eligible\t  for
\n     promotion, the  said period shall in its
\n     application to  an allottee eligible for
\n     promotion under  this section, be deemed
\n     to\t be   the  period   during  which  he
\n     satisfactorily completes  the period  of
\n     officiation in  the post  or  office  of
\n     that class\t or grade  of service  and no
\n     such minimum  service shall be necessary
\n     in the  case of an allottee whose record
\n     of\t service   was\tsatisfactory  on  the
\n     relevant dates  of\t eligibility  or  the
\n     relevant dates  on\t which\the  is\tfound
\n     eligible for promotion.\n<\/p><\/blockquote>\n
     (8)  In respect  of promotions  from any
\n     class or  grade of\t service by selection
\n     to the  next higher  class or  grade  of
\n     service, where  an allottee  would\t have
\n     been eligible  for consideration  if  he
\n     had been promoted to the former class or
\n     grade of  service on  the basis  of  his
\n     seniority in  the final  seniority list,
\n     such allottee, shall, subject to section
\n     9, be  considered for  selection to  the
\n     next higher  class or  grade of service,
\n     immediately  after\t  he   satisfactorily
\n     completes the  period of  officiation in
\n     the  said\t former\t class\tor  grade  of
\n     service. If  he is selected and promoted
\n     to the  higher class or grade of service
\n     and satisfactorily\t completes his period
\n     of officiation  in\t the  said  class  or
\n     grade, he\tshall be  entitled to initial
\n     pay on  the date  of actual promotion to
\n     the said  class or\t grade as  if he  was
\n     holding the said post or office from the
\n     date on  which his\t immediate junior  in
\n     the lower class or grade was promoted to
\n     the said  class or grade of service, but
\n     he shall  not be  entitled to payment of
\n     any arrears  for the period prior to the
\n     date of  his actual  promotion. His rank
\n     in the  seniority list of the persons in
\n     the said  class or\t grade shall be fixed
\n     as if  he had  been promoted on the date
\n     immediately preceding  the date on which
\n     his immediate  junior in the lower class
\n     or grade  was promoted  to the selection
\n     class or grade of service.\n<\/p><\/blockquote>\n
     (9)  An order  under sub-section  (2) in
\n     respect of\t an  allottee  who  had\t been
\n     reduced to a lower stage in a time scale
\n     and whose\tincrement had  been  withheld
\n     shall be subject to such modification as
\n     the  State\t  Government  may,  by\torder
\n     direct.\n<\/p><\/blockquote>\n
     (10) No promotions\t of allottees made on
\n     the basis of any provisional inter-State
\n     seniority list, shall be reviewed except
\n     after  the\t  publication  of  the\tfinal
\n     seniority\tlist   and  in\t the   manner
\n     provided in this section.\n<\/p><\/blockquote>\n
     Explanation :- For purposes of this sub-
\n     section  provisional   inter-State\t list
\n     includes  every   inter-State  seniority
\n     list used\tas the\tbasis for carrying on
\n     the  day-to-day  administration  whether
\n     prepared  by  the\tState  Government  or
\n     declared by court as operative until the
\n     publication  of   the  final   seniority
\n     list.”<\/p><\/blockquote>\n
     We may  recapitulate at this stage that the petitioners
\nhave mounted  a limited attack on the impugned provisions of
\nthe Act\t in so\tfar as\tthey deprive  them of  the  monetary
\nbenefits flowing  from the  deemed promotion  to be given to
\nthem pursuant  to the  orders of  the Division\tBench of the
\nHigh Court  which have\tbecome final between the parties. We
\nhave extracted\tthe aforesaid Section with its relevant sub-
\nsections wherein  the impugned\tprovisions of  the concerned
\nclauses have been indicated by underlining them. Petitioners
\ncontend that  underlined portions  of sub-sections  (2), (3)
\nand (8)\t of Section  4 clearly\tfall  within  the  teeth  of
\nbinding decision of the Division Bench of the High Court and
\nthey are  in clear  conflict with the said binding decision.
\nAs we  are not\tconcerned with\tother provisions  of the Act
\nexcept Section 11(2) we may straightaway turn to Section 11.
\nThe said provision deals with over-riding effect of the Act.
\nIt reads as under :-\n<\/p>\n
     “Over-riding effect. – (1)\t   The
\n     provisions of  this Act  or of any order
\n     made  thereunder\tshall\thave   effect
\n     notwithstanding  anything\t inconsistent
\n     therewith contained  in any law or order
\n     having the\t force of  law or  rules made
\n     under the\tproviso to Article 309 of the
\n     Constitution of India for the time being
\n     in force or any provision regulating the
\n     conditions of service of any allottee or
\n     in any  order made by virtue of any such
\n     law, rules or provisions.\n<\/p>\n
     (2)  Notwithstanding anything  contained
\n     in any  judgment, decree or order of any
\n     court or  other competent\tauthority the
\n     rights  to\t which\ta  civil  servant  is
\n     entitled to  in respect  of  matters  to
\n     which the\tprovisions of  this  Act  are
\n     applicable,  shall\t  be  determined   in
\n     accordance with  the provisions  of this
\n     Act,  and\t accordingly,  any  judgment,
\n     decree or\torder directing\t promotion or
\n     consideration  for\t promotion  of\tcivil
\n     servants and  payment  of\tsalaries  and
\n     allowances\t   consequent\t upon\t such
\n     promotion shall  be reviewed  and orders
\n     made in  accordance with  the provisions
\n     of this Act.”\n<\/p>\n
A mere\tlook at sub-section (2) of Section 11 shows that the
\nrespondent, State  of Karnataka,  which was  a party  to the
\ndecision of  the Division Bench of the High Court against it
\nhad tried  to get  out of the binding effect of the decision
\nby  resorting  to  its\tlegislative  power.  The  judgments,
\ndecrees and  orders of\tany court or the competent authority
\nwhich had  become final\t against the State were sought to be
\ndone away  with by  enacting the impugned provisions of sub-
\nsection (2) of Section 11. Such an attempt cannot be said to
\nbe  a\tpermissible  legislative  exercise.  Section  11(2),
\ntherefore, must\t be held to be an attempt on the part of the
\nState  Legislature   to\t legislatively\t over-rule   binding
\ndecisions of  competent courts\tagainst the  State. It is no
\ndoubt true  that if  any decision  was rendered\t against the
\nState of  Karnataka which  was pending in appeal and had not
\nbecome final  it could\trely upon the relevant provisions of
\nthe Act which were given retrospective effect by sub-section
\n(2) of\tSection 1  of the Act for whatever such reliance was
\nworth. But  when such  a decision had become final as in the
\npresent\t case\twhen  the   High  Court\t  clearly   directed
\nrespondent-State to give to the concerned petitioners deemed
\ndates of  promotions if they were otherwise found fit and in
\nthat eventuality  to give all benefits consequential thereon
\nincluding financial benefits, the State could not invoke its
\nlegislative power  to displace\tsuch a\tjudgment. Once\tthis
\ndecision had become final and the State of Karnataka had not
\nthought it  fit to challenge it before this Court presumably
\nbecause in  identical other  matters this  Court had  upheld
\nother decisions\t of the Karnataka High Court taking the same
\nview, it  passes one’s\tcomprehension  how  the\t legislative
\npower can  be pressed in service to undo the binding effects
\nof such mandamus. It is also pertinent to note that not only
\nsub-section (2)\t of Section 11 seeks to bypass and over-ride
\nthe binding  effect of\tthe  judgments\tbut  also  seeks  to
\nempower the  State to  review such  judgments and orders and
\npass fresh  orders in  accordance  with\t provisions  of\t the
\nimpugned Act.  The respondent-State  in the  present case by
\nenacting sub-section  (2) of  Section 11 of the impugned Act
\nhas clearly  sought  to\t nullify  or  abrogate\tthe  binding
\ndecision of  the High  Court and  has  encroached  upon\t the
\njudicial  power\t  entrusted  to\t  the  various\t authorities
\nfunctioning   under    the   relevant\tstatutes   and\t the
\nConstitution. Such  an exercise\t of legislative power cannot
\nbe countenanced.\n<\/p>\n
     It was  contended\tby  Shri  Madhava  Reddy  that\teven
\nassuming that  the Division  Bench judgment remained binding
\non the State despite the provisions of the impugned Act, all
\nthat the  Division  Bench  has\tdirected  the  State  is  to
\nconsider the  case of  the petitioners for deemed promotions
\non the\tbasis of  the final seniority list. That has already
\nbeen done  and the  petitioners have  no grievance  for\t the
\nsame. So  far as  the consequential  financial benefits\t are
\nconcerned they would not cover the monetary benefits flowing
\nfrom such  deemed promotions. Even this submission cannot be
\ncountenanced.  We   have  already   extracted  earlier\t the
\noperative portion  of the judgment of the Division Bench. It
\nhas been  in terms  directed that if petitioner is found fit
\nand promoted  he may be given all the benefits consequential
\nthereto including  the financial benefits. It is, therefore,
\nobvious that  once the\tdeemed date of promotion is given to
\nthe concerned  petitioners  it\tcannot\tbe  merely  notional
\npromotion re-fixing  his pay  in the  promotional cadre with
\nincrements etc.\t but  also  would  bring  in  its  wake\t all
\nconsequential financial\t benefits, namely, the salaries that
\nhave accrued  to them  on account of such deemed promotions.
\nWhether\t such  deemed  promotions  can\talso  entail  actual
\nmonetary benefits  when\t the  concerned\t employees  had\t not
\nworked on  the promotional  posts, is a question which could
\nhave been  agitated by\tthe respondent-State, if so advised,
\nby challenging\tthe order  of the Division Bench before this
\nCourt. That  was  not  done.  Instead  it  resorted  to\t its
\nlegislative power  for undoing\tthe said  directions of\t the
\nDivision Bench\tby arming  itself with\tthe power  to review
\nthat judgment  by resort  to its  legislative function. That
\nwas clearly not permissible as it was an act of encroachment
\non the\tjudicial pronouncement\tof the\tHigh Court which had
\nremained binding  on the  respondent-State. The ratio of the
\ndecisions of  this Court  as discussed\tearlier clearly\t get
\nattracted on  the facts\t of the present case and on the same
\ngrounds\t on   which  this  Court  invalidated  the  relevant
\nprovisions of  Arbitration (Orissa  Second  Amendment)\tAct,
\n1991 in\t G.C. Kanungo (supra). Section 11 sub-section (2) of
\nthe impugned  Act also\thas to\tbe declared  ultra vires and
\ninvalid.\n<\/p>\n
     We, therefore,  strike down  Section 11 sub-section (2)
\nas  unconstitutional,  illegal\tand  void.  So\tfar  as\t the
\nunderlined impugned  portions of Section 4 sub-sections (2),
\n(3) and\t (8) are  concerned, they  clearly conflict with the
\nbinding direction  issued by  the Division Bench of the High
\nCourt against  the respondent-State  and in  favour  of\t the
\npetitioners. Once respondent-State had suffered the mandamus
\nto give\t consequential financial  benefits to  the allottees
\nlike the  petitioners on  the basis of the deemed promotions
\nsuch  binding\tdirection  about  payment  of  consequential
\nmonetary  benefits  cannot  be\tnullified  by  the  impugned
\nprovisions of  Section 4. Therefore, the underlined portions
\nof sub-sections\t (2), (3)  and (8) of Section 4 will have to
\nbe read\t down in the light of orders of the court which have
\nbecome final  against the  respondent-State and in so far as
\nthese provisions  are inconsistent  with these\tfinal orders
\ncontaining  such  directions  of  judicial  authorities\t and
\ncompetent courts,  these impugned  provisions of  Section  4
\nhave to\t give way  and to  the extent  of such inconsistency
\nmust  be   treated  to\t be  inoperative   and\tineffective.
\nAccordingly  the  aforesaid  provisions\t are  read  down  by
\nobserving that\tthe statutory  provisions contained  in sub-
\nsections (2),  (3) and\t(8) of Section 4 providing that such
\npersons who  have been\tgiven deemed promotions shall not be
\nentitled to  any arrears for the period prior to the date of
\ntheir actual  promotion, shall\tnot  apply  in\tcases  where
\ndirections to  the contrary  of competent courts against the
\nrespondent-State have become final.\n<\/p>\n
     In the  result, this writ petition succeeds. Section 11
\nsub-section  (2)   is  struck\tdown  as   ultra  vires\t the
\nlegislative powers  of the  State. Sub-sections (2), (3) and
\n(8) of Section 4 are read down as aforesaid. The respondent-
\nState shall  comply with  the directions  contained  in\t the
\nbinding decision  of  the  High\t Court\tof  Karnataka  dated
\n21.9.1971 in  Writ Petition Nos. 2598, 3302-3304 and 4586 of
\n1970 and  shall make  available all  consequential financial
\nbenefits to  the concerned  petitioners as  directed by\t the
\nHigh Court  within a  period of eight weeks from the receipt
\nof the\torders of  this Court at its end. Rule issued in the
\nWrit Petition is accordingly made absolute with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.R. Bhagwat & Ors vs The State Of Mysore on 12 September, 1995 Equivalent citations: 1996 AIR 188, 1995 SCC (6) 16 Author: M S.B. Bench: Majmudar S.B. (J) PETITIONER: S.R. BHAGWAT & ORS. Vs. RESPONDENT: THE STATE OF MYSORE DATE OF JUDGMENT12\/09\/1995 BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-180517","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.R. 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