{"id":269480,"date":"1997-07-11T00:00:00","date_gmt":"1997-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-s-bhola-ors-vs-b-d-sardana-ors-on-11-july-1997"},"modified":"2017-11-26T03:09:03","modified_gmt":"2017-11-25T21:39:03","slug":"s-s-bhola-ors-vs-b-d-sardana-ors-on-11-july-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-s-bhola-ors-vs-b-d-sardana-ors-on-11-july-1997","title":{"rendered":"S.S. Bhola & Ors vs B.D. Sardana & Ors on 11 July, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.S. Bhola & Ors vs B.D. Sardana & Ors on 11 July, 1997<\/div>\n
Author: Pattanaik<\/div>\n
Bench: G.B. Pattanaik<\/div>\n
           PETITIONER:\nS.S. BHOLA & ORS.\n\n\tVs.\n\nRESPONDENT:\nB.D. SARDANA & ORS.\n\nDATE OF JUDGMENT:\t11\/07\/1997\n\nBENCH:\nG.B. PATTANAIK\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nPATTANAIK, J.\n<\/p>\n
     I have  gone through  the erudite\tjudgment prepared by
\nBrother\t Ramaswamy.   J.  and\thaving\tgiven\tan   anxious
\nconsideration  to   the\t conclusions  arrived  at  I  am  in
\nrespectful disagreement\t with the  same. Taking into account
\nthe fact  that Brother\tRamaswamy, J.  would be demiting his
\noffice on  13th of  July, 1997, and the short time I have at
\nmy disposal  I have  not been  able to be as elaborate as my
\nbrother. But  the two broad features which have persuaded me
\nto take\t a contrary  view are that the implementation of the
\nconclusions arrived  at by  Brother Ramaswamy, J. would lead
\nto a  situation where a direct recruit like Mr. B.D. Sardana
\nas an  Assistant Executive  Engineer in\t the year 1977 would
\nbecome senior to the promotees like Shri S.S. Bhola who were
\npromoted as  Executive Engineer way back in 1971 long before
\nthe entry of Mr. Sardana into the services. Further when the
\nlegislatures being  aware of  the aforesaid gross inequities
\nand anomalous situation have come forward with a legislation
\nby enacting  an Act  and giving it retrospective effect from
\nthe date  the State of Haryana came into existence the Court
\nshould try  to sustain the Act unless the Act is found to be
\nrepugnant to  any of  the constitutional provision. With the
\naforesaid background  I have  endeavoured broadly  with\t the
\nquestions that arose for consideration.\n<\/p>\n
     These appeals  by Special Leave as well as the Transfer
\nCases relate  to the  age old problem in almost all services
\ni.e. determination  of inter-se seniority between the direct
\nrecruits and promotees within a cadre. These cases arise out
\nof the\tdirections of  this Court in two cases, namely, A.N.
\nSehgal and others vs. Raje Ram Sheoran and others<\/a> 1992 Supp.
\n(1) Supreme  Court Cases  304 and S.L. Chopra and others vs.
\nState of  Haryana and  others<\/a> – 1992 Supp. (1) Supreme Court
\nCases 391  and the seniority list drawn up by the Government
\nof Haryana  pursuant to\t the  aforesaid\t direction  and\t the
\nintervention by\t the legislators  in enacting  an Act called
\nthe  haryana   Service\tEngineers,  Class  I,  Public  Works
\nDepartment  (Building\tand  Roads  Branch),  Public  Health
\nBranch)\t and  (Irrigation  Branch)  Act,  1995\t(hereinafter
\nreferred to as “the Act”). Civil appeals nos. 422\/93, 423\/93
\nand 424\/93,  Writ Petition No. 582\/95, and Transfer Case No,
\n44\/96 relate  to Public\t Health Branch and the orders passed
\nby the\tState Government  determining the inter se seniority
\nin the\tsaid Branch. Out of these three Civil Appeals one is
\nby the\tState of  Haryana and two others are by the promotee
\naffected officers  belonging to the Public Health Branch and
\nthey are  aggrieved by the judgment of the Division Bench of
\nthe Punjab  and Haryana High Court in Letters Patent Appeal.
\nWrit Petition  No. 582\/95  is by direct recruit B.D. Sardana
\nunder  Article\t 32<\/a>  of\t the  Constitution  challenging\t the
\nvalidity of  the Act  and praving for direction to grant him
\nseniority  just\t  below\t the   10  officers   who  initially
\nconstituted the\t service when the State of Haryana came into
\nexistence. Transfer  Case No.  44\/96 had  also been filed by
\ndirect\trecruit\t  in  the  Punjab  and\tHaryana\t High  Court
\nchallenging  the   validity  of\t  the  Act  which  has\tbeen
\ntransferred pursuant  to the  orders of\t this  Court.  Civil
\nAppeal Nos.  1448-49\/93 filed  by the State and Civil Appeal
\nNos. 1452-53\/93\t filed by the promotee officers belonging to
\nthe Irrigation\tBranch are  directed against the judgment of
\nthe Division  Bench of\tthe Punjab and Haryana High Court in
\nLetters Patent\tAppeal which  arose out\t of a  Writ Petition
\nfiled by  one M.L.  Gupta who  was directly  appointed as an
\nAssistant Executive Engineer on 27.8.1971. Transfer Case No.
\n40\/96 is  the Writ  Petition filed by Shri Gupta challenging
\nthe validity  of the  Act which\t stood transferred  to\tthis
\nCourt pursuant\tto the orders of this Court. The brief facts
\nleading to the enactment of the Act may be stated as under:-\n<\/p>\n
     The separate  State of  Haryana came  into existence on
\n1.11.1966. When\t Punjab and  Haryana   was  one\t State,\t the
\nrecruitment and\t conditions of\tservice of  Engineers in the
\nState was being regulated by Rules framed by the Governor of
\nPunjab in  exercise of\tpowers conferred  by  proviso  under
\nArticle 309<\/a>  of the  Constitution. The\tset of Rules dealing
\nwith the  Engineers of\tthe Public  Health Branch was called
\n“The  Punjab   Service\tEngineers,  Class  I,  Public  Works
\nDepartment (Public  Health Branch) Rules 1961. A similar set
\nof Rules  had also been framed by the Governor under Proviso
\nto  Article  309<\/a>  of  the  Constitution\t for  the  Engineers
\nbelonging to the Roads and Building Branch called the Punjab
\nService of  Engineers,\tClass  I,  Public  Works  Department
\n(Roads and  Buildings Branch) Rules, 1960. The provisions of
\nthese two  rules are  almost identical. A third set of Rules
\nalso had been framed by the Governor for Engineers belonging
\nto the\tIrrigation Branch,  called “The\t Punjab\t Service  of
\nEngineers, Class  I.  Public  Works  Department\t (Irrigation
\nBranch) Rules.\tAfter the  formation of the State of Haryana
\nthe Government\tof Haryana  adopted all\t the aforesaid three
\nRules to  deal with  the service conditions of the Engineers
\nbelonging to  the three\t branches, namely, the Public Health
\nBranch, the  Roads and\tBuildings Branch  and the Irrigation
\nBranch. The dispute relating to the fixation of seniority of
\npromotees and  direct recruits\tin the\tRoads and  Buildings
\nBranch came  up for  consideration before  this Court in the
\ncase of\t A.N. Sehgal  and others  vs. Raje  Ram Sheoran\t and
\nothers<\/a> –  1992 Supp  (1) Supreme  Court Cases  304, and this
\nCourt after thorough analysis of different provisions of the
\nRules relating to the Roads and Buildings Branch interpreted
\nthe Rules  of  seniority  and  directed\t the  Government  of
\nHaryana to  determine the  cadre post regularly from time to
\ntime and  to issue  orders appointing  substantively to\t the
\npost within  the quota\tand determine the inter se seniority
\nbetween\t the  promotees\t and  the  direct  recruits  in\t the
\nrespective quota  cadre\t post  of  Executive  Engineer.\t The
\nprovisions of  the Public  Health Branch  Rules came  up for
\nconsideration in  the case of S.L. Chopra & others vs. State
\nof Haryana  and Others<\/a>\t1992 Supp.  (1) Supreme\t Court Cases
\n391, and the dispute in that case also was the determination
\nof inter  se seniority\tbetween the  direct recruits and the
\npromotees.  This   Court  also\t interpreted  the   relevant
\nprovisions of  the  Rules  for\tdetermination  of  inter  se
\nseniority in the Public Health Branch and directed the State
\nGovernment  to\tdetermine  the\tcadre  strength\t in  Haryana
\nService of  Engineers, Class  I, PWD  (Public Health Branch)
\nRules of  the posts  of Executive  Engineer,  Superintending
\nEngineer and  Chief Engineer  and consider  the cases of the
\nappellant in  the said\tcase as\t well as the respondents for
\npromotion  to  the  senior  posts  of  Executive  Engineers,
\nSuperintending Engineers  and Chief  Engineers\trespectively
\nwith  the   respective\tquota\tof  50\tper  cent  and\tmake
\nappointment if\tfound eligible and fit for promotion. It may
\nbe stated that the Rules relating to Irrigation Branch which
\nis slightly different from both the aforesaid Rules, namely,
\nthe Public  Health Branch and Roads and Buildings Branch had
\nnever cropped  up for consideration. After the aforesaid two
\njudgments of  this Court  and  pursuant\t to  the  directions
\nissued, the  State Government  began the  exercise of fixing
\nthe cadre strength during each year commencing from 1966 and
\nalso began  determination  of  inter  se  seniority  of\t the
\npromotees and  direct recruits in the different posts within
\nthe service  and also  drew up\tthe seniority  list  of\t the
\nemployees. The\tfirst set  of seniority list was drawn up on
\n6.4.92 and  being aggrieved  by the said seniority list Writ
\nPetitions were\tfiled and  the Punjab and Haryana High Court
\nhaving quashed\tthe same, Special Leave Petitions were filed
\nin this\t Court. During\tthe pendency  of the  Special  Leave
\nPetitions in  this Court  and prior  to the  hearing of\t the
\ncases two  other sets  of seniority lists had been drawn up,
\none on\t13.3.1997  and\tanother\t on  19.3.97  and  strenuous
\narguments had  been advanced  in support  of and against the
\naforesaid lists\t drawn up by the Government. The main attack
\nto the\taforesaid list is that the earlier directions issued
\nby this\t Court in  Sehgal’s case (supra) as well as Chopra’s
\ncase (supra)  have not\tbeen duly followed in drawing up the
\nseniority list. Subsequent to the judgment of the Punjab and
\nHaryana High Court striking down the seniority list prepared
\nby the\tGovernment pursuant  to the directions of this Court
\nin Chopra’s case (supra) the Haryana Legislators enacted the
\nAct to regulate the recruitment and conditions of service of
\npersons appointed in all the three branches and the validity
\nof the\tsaid Act  had been  challenged in the Writ Petitions
\nfiled in Punjab and Haryana High Court. Those Writ Petitions
\nhave been  transferred to  this Court and have been numbered
\nas Transfer  case. Elaborate  arguments were advanced by the
\ncounsel\t for   parties\tchallenging   the  validity  of\t the
\naforesaid Act  basically on  the ground\t that  it  seeks  to
\nmerely annul  the judgment  of this  Court in  Sehgal’s case
\n(supra)\t and   in  Chopra’s   case  (supra)   which  is\t not
\npermissible in law. It may be stated that if the Act is held
\nto be  valid then necessarily the seniority list drawn up by
\nthe State  Government pursuant\tto the\tdirections  of\tthis
\nCourt in  Sehgal’s case\t (supra) and  Chopra’s case  (supra)
\nwill not  bold good  and a  fresh seniority  list has  to be
\ndrawn up as the Act in question has been given retrospective
\neffect with  effect from  the date  of the  formation of the
\nState of  Haryana in November 1966. If the Act is held to be
\nultra vires  then also\tit has\tto be  examined whether\t the
\nseniority list\tdrawn up  by  the  State  Government  is  in
\naccordance with the earlier direction given by this Court in
\nSehgal’s case  (supra) and  Chopra’s case (supra) and if not
\nwhat further directions are necessary? It is in this context
\nit must\t be borne in mind that in the earlier cases only the
\nprinciples of  determination of\t inter se  seniority between
\nthe direct  recruits and  the promotees\t had been considered
\nand adjudge  bet as  to how  the initial  allottees  to\t the
\nservices would be considered there was no adjudication in as
\nmuch as that question did not crop up for consideration.\n<\/p>\n
     So far as the public health branch is concerned, on the
\ndate of\t the formation\tof the\tState of  Haryana 14 persons
\nwere brought from the erstwhile Punjab cadre of Engineers of
\nconstitute the\tinitial cadre  in the  State of\t Haryana and
\nsince the  cadre strength of the service in Haryana was only
\n10, four  of these  persons were  adjusted against  ex-cadre
\npost. While bringing persons from the erstwhile Punjab cadre
\nto Haryana  the relevant  Rules\t and  the  quota  of  direct
\nrecruit and  promotees in  the service had not been borne in
\nmind and  officers were\t brought from  the erstwhile  Punjab
\ncadre depending upon the domicile of the employees. In other
\nwords, those  who belonged to the Haryana State were brought
\nover to\t Haryana cadre\tand in regulating the cadre strength
\nthe ratio  between direct  recruits  and  promotees  as\t per
\nRecruitment Rules  then in  force has  not been observed. In
\nthe aforesaid  premises a  question which  would  arise\t for
\nconsideration and ultimate decision would be as to how these
\n10 officers  who were brought over from the erstwhile Punjab
\nState and  constituted the initial cadre strength of service
\nin Haryana  would be  dealt with? This question had not been
\ndealt with  either in  Sehgal’s case  or  in  Chopra’s\tcase
\nreferred to  supra. At this stage it would be appropriate to
\nnotice as  to what  was decided\t by this Court in Sehgal and
\nChopra. Sehgal deals with roads and building branch. In that
\ncase, one,  R.R. Sheoran  challenged Gradation\tList and the
\nseniority assigned  to Sehgal  and others  by filing  a writ
\npetition in  Punjab and\t Haryana High  Court.  The  Division
\nBench of  the High  Court came\tto hold\t that Sheoran  was a
\nmember\tof   the  service  from\t the  date  of\this  initial
\nappointment as\tAssistant Executive  Engineer whereas Sehgal
\nand others  who\t were  promoted\t were  not  members  of\t the
\nservice. This  decision was challenged by Sehgal, a promotee
\nofficer and  it was  agreed between  the parties  that\tthis
\nCourt would  decide the\t principles on\tconsideration of the
\nRules and  leave the  matter for  the  State  Government  to
\ndetermine the  inter se\t seniority by  applying the law. The
\nCourt considered Rule 3(1), Rule 3(2), Rule 5(1)(a), Rules 6
\nand 7,\tRule 11(1),  Rule 12(3) and sub-rule (12) of Rule 2.
\nThis Court  came to  the conclusion  that a  direct  recruit
\nwould always  be recruited  and appointed  to a\t substantive
\nvacancy and  from the  date he\tstarts discharging  the duty
\nattached to  the post  he is a member of the service subject
\nto his successfully completing the probation and declaration
\nthereof at a later date and this appointment related back to
\nthe date  of  initial  appointment,  subject  to  his  being
\ndischarged from service on failure to complete the probation
\nwithin or  extended period  or termination  of\tthe  service
\naccording to rules. So far as a promotee is concerned it was
\nheld  that   a\tpromotee   would  have\tinitial\t officiating
\npromotion to  a temporary vacancy or substantive vacancy and
\non successful  completion and  declaration of the probation,
\nunless reverted\t to lower  posts, he awaits appointment to a
\nsubstantive vacancy.  Only on  appointment to  a substantive
\nvacancy he becomes a member of the service. It was also held
\nthat a direct recruit appointed to an ex-cadre post alone is
\na member  of the  service even\twhile on  probation and Rule
\n2(12)(a) applies to them and it does not apply to a promotee
\nfrom Class II service. This Court also held:\n<\/p>\n
     “on a  conjoint  reading  of  Rules
\n     12(3) and\t12(5) it  is clear  that
\n     the  year\t of  allotment\t of  the
\n     Assistant Executive Engineer in the
\n     post of  Executive Engineer,  shall
\n     be the  calendar year  in which the
\n     order of  appointment as  Assistant
\n     Executive Engineer\t had been  made.
\n     Thus  his\tseniority  as  Executive
\n     Engineer, by  fiction of law, would
\n     relate back  to his date of initial
\n     appointment as  Assistant Executive
\n     Engineer and  in  juxtaposition  to
\n     Class  II\tofficers’  seniority  as
\n     Executive Engineer is unalterable”.<\/p><\/blockquote>\n
     Since  Shri  Sheoran  was\tappointed  as  an  Assistant
\nExecutive Engineer  on August 30, 1971, it was directed that
\nhis seniority  as Executive  Engineer shall  accordingly  be
\nreckoned. While\t interpreting Rule  5(2) and proviso thereto
\nit was\theld that  the intendment appears to be that so long
\nas the direct recruit Assistant Executive Engineer, eligible
\nand considered\tfit for\t promotion  is\tnot  available,\t the
\npromotee from  Class II\t service in  excess of\tthe quota is
\neligible to occupy in officiating capacity the senior posts,
\ni.e., Executive\t Engineers  and\t above.\t The  moment  direct
\nrecruits are available, they alone are entitled to occupy 50
\nper cent  of their  quota posts and the promotees shall give
\nplace to  the direct  recruits. On  the question what is the
\ndate from  which the  seniority of  a promotee\tas Executive
\nEngineer shall\tbe reckoned,  the Court held that a promotee
\nwithin quota  under Rule  5(2) gets  his seniority  from the
\ninitial date  of his promotion and the year of allotment, as
\ncontemplated in\t Rule 12(6)  shall be  the next\t below\t`the
\njuniormost officer  in the  service whether  officiating  or
\nconfirmed  as\tExecutive  Engineer   before  the   former’s
\nappointment’ counting  the entire officiating period towards
\nseniority, unless  there is break in the service or from the
\ndate  of   later  promotion.  Such  promotee,  by  necessary
\nimplication, would  normally become  senior  to\t the  direct
\nrecruit promoted  later. Combined operation of sub-rules (3)
\nto (5)\tof Rule\t 12 makes the direct recruit a member of the
\nservice of  Executive Engineer\tfrom the  date\tof  year  of
\nallotment as  an Assistant Executive Engineer. The result is
\nthat the  promotee occupying  the posts\t within 50  per cent
\nquota of  the direct recruits, acquired no right to the post
\nand should yield to direct recruit, though promoted later to
\nhim, to\t the senior  scale posts  i.e., Executive  Engineer,
\nSuperintending Engineer and Chief Engineer. The promotee has
\nright to confirmation in the cadre post as per Rule 11(4) if
\na post\tis available  to him  within his quota or at a later
\ndate  under   Rule  5(2)  read\twith  Rule  11(4)  and\tgets
\nappointment under  Section 8(11).  His\tseniority  would  be
\nreckoned only  from the date of the availability of the post
\nand the\t year of  allotment, he\t shall be  next below to his
\nimmediate senior  promotee to that year or the juniormost of
\nthe  previous  year  of\t allotment  whether  officiating  or
\npermanent occupying  the post  within 50 per cent quota. The
\nofficiating period  of the  promotee between  the  dates  of
\ninitial promotion  and the  date of  the availability of the
\ncadre post  would thus\tbe rendered  fortuitous\t and  stands
\nexcluded. A  direct recruit  on promotion  within the quota,
\nthough later  to the  promotee is  interposed in between the
\nperiods and  interjects the promotee’s seniority’s snaps the
\nlinks in the chain of continuity and steals a march over the
\napproved promotee  probationer. Harmonious  construction  of
\nRules 2(1),  2(2), 2(7), 2(10), 2(12), 2(12)(a), 5(2)(a), 8,
\n9(2), 11,  12(3), 12(5)\t to 12(7)  would yield\tto the above
\nresult, lest the legislative animation would be defeated and
\nthe rules  would be  rendered otiose  and surplus.  It would
\nalso adversely\taffect the  morale  and\t efficiency  of\t the
\nservice. Mere  officiating appointment\tby  promotion  to  a
\ncadre post outside the quota; continuous officiating therein
\nand declaration\t of probation  would not clothe the promotee
\nwith any  right to claim seniority over the direct recruits.
\nThe necessary  conclusion  would,  therefore,  be  that\t the
\ndirect recruits\t shall get  his\t  seniority with effect from
\nthe date of the year of the allotment as Assistant Executive
\nEngineer which\tis not alterable. Whereas the promotee would
\nget his seniority w.e.f. the date of the availability of the
\nposts within 50 per cent quota of the promotees. The year of
\nallotment is  variable and  the seniority  shall be reckoned
\naccordingly. Appointment to the cadre post substantively and
\nconfirmation thereof  shall be\tmade under  Rule 8(11)\tread
\nwith Rule  11(4) of the Rules. A promotee Executive Engineer
\nwould only  then become\t member of  the service.  `Appointed
\nsubstantively’ within the meaning of the Rule 2(12)(a) shall
\nbe  construed\taccordingly.  We,   further  hold  that\t the
\nseniority of the promotee from Class II service as Executive
\nEngineer shall\tbe determined  with effect  from the date on
\nwhich the  cadre post was available to him and the seniority
\nshall be  determined  accordingly.”  Ultimately\t this  Court
\ndirected the  Government of  Haryana to\t determine the cadre
\nposts, if  not already\tdone, regularly\t from time  to\ttime
\nincluding the  post created  due to exigencies of service in
\nterms of  Rule 3(2)  read with\tAppendix `A’  and allot\t the
\nposts in  each year  of allotment as contemplated under Rule
\n12 read\t with  Rule  5(2)(a)  and  issue  orders  appointing
\nsubstantively to  the respective  posts within the quota and
\ndetermine the  inter se\t seniority  between  the  appellants
\ntherein who  were promotees  and Sheoran, direct recruits in
\nthe respective\tquota cadre posts of Executive Engineer. The
\nCourt also  held that  the inter  se seniority of the direct
\nrecruits and  promotees shall  be determined  in  accordance
\nwith the principles laid down.\n<\/p>\n
     In S.L.  Chopra’s case,  which deals with Public Health
\nBranch, this  Court held  that direct recruits get seniority
\nfrom the date of appointment as Assistant Executive Engineer
\nand it\tis unalterable.\t But  the  promotee’s  seniority  is
\nvariable by  operation Rules  8(11) and\t 11(4); 2(12)(a) and
\n5(2) of\t the Rules.  The State\tGovernment  was\t accordingly
\ndirected to  determine the   cadre  strength in\t the Haryana
\nService of  Engineers, Class  I PWD  (Public Health  Branch)
\nunder  the   rules,  Executive\t Engineers,   Superintending
\nEngineers and  Chief Engineers and consider the cases of the
\nappellants therein  as well  as the  contesting\t respondents
\nB.D. Sardana,  F.L. Kansal for promotion to the senior posts
\nof Executive  Engineers, Superintending\t Engineers and Chief
\nEngineers respectively\twith the  respective quota of 50 per
\ncent and  make appointment  if found  eligible and  fit\t for
\npromotion. In  the   said case\tthe appellant was a promotee
\nand the respondents were direct recruits.\n<\/p>\n
     The seniority list which was drawn up on 6.4.92 assumed
\nthat out  of ten  incumbents who  originally constituted the
\nservice in  the Public Health Branch five have to be treated
\nas directed  recruits fictionally  under Rules 5(3) and 5 as
\npromotees so  that the\tdisparity  in  the  ratio  will\t not
\ninfluence the future promotion. The seniority list which was
\ndrawn up  on 19.3.97  took  the\t ten  incumbents  originally
\nconstituted service  belonging to  the\tquota  of  promotees
\nsince factually\t all of them were promotees under the Punjab
\nRules and  then determined  the inter se seniority of direct
\nrecruits and  the promotees  by application of law laid down
\nby this\t Court in  Sehgal’s case  (supra) and  Chopra’s case
\n(supra).\n<\/p>\n
     In course\tof his\tsubmissions, Mr. Tulsi appearing for
\nthe State  demonstrated that  the Seniority  List which\t was
\ndrawn up  on 19.3.77  topsy turbid  the position  to such an
\nextent that a direct recruit as Assistant Executive Engineer
\nwho was\t not even born on the cadre when a promotee had been
\nappointed as  the Executive  Engineer, such  direct  recruit
\nbecame senior to the promotee Executive Engineer. Such gross
\ninequity which\twas resulted  on account of giving effect to
\nthe Rules  in force  and interpreted by this Court in Sehgal
\nand  Chopra   persuaded\t the  legislature  to  intervene  by
\nenacting the Act and giving it retrospective effect.\n<\/p>\n
     Let us now examine the validity of the Act itself which
\nwas  challenged\t by  the  direct  recruits  in\tfiling\twrit
\npetitions in  the High Court of Punjab and Haryana and those
\nwrit petitions\tstood transferred to this Court. Mr. Sachar,
\nthe leaned  counsel appearing  for the\twrit  petitioners  –
\ndirect\t recruits contended  that the  Act is nothing but an
\nusurpation of  judicial power  by the  legislature to annual
\nthe judgments  of this\tCourt in  Sehgal and  Chopra and  it
\nmerely declares\t the earlier judgments to be invalid without
\nanything more  and  as\tsuch  is  invalid  and\tinoperative.
\nFurther the  Act takes\taway the rights accrued in favour of
\nthe direct recruits pursuance to the judgments of this Court
\nin Sehgal and Chopra and consequently the Act must be struck
\ndown. The  learned counsel  also  urged\t that  the  mandamus
\nissued by this Court in Sehgal and Chopra has to be complied
\nwith and  the State  Legislature has  no power\tto make\t the
\nmandamus ineffective  by enacting  an Act  to  override\t the
\njudgment of this Court which tantamounts to a direct in-road
\ninto the  sphere occupied  by judiciary and consequently the
\nAct has\t to be\tstruck down. This argument of Mr. Sachar was
\nalso supported\tby Mr.\tMahabir Singh,\tthe learned  counsel
\nappearing for the petitioners in T.P. (Civil) No. 46 of 1997
\nin his written submissions and it was urged that in any view
\nof  the\t  matter  the  legislatures  could  not\t have  given
\nretrospective operation\t to the Act itself with reference to
\na situation  that was  in existence 25 years ago and such an
\nact of\tthe legislature\t must be  held to  be invalid as was
\nheld by\t this Court  in the  case of  STATE OF\tGUJARAT\t AND
\nANOTHER VS.  RAMAN LAL\tKESHAV LAL SONI AND OTHERS. (1983) 2
\nS.C.C. 33. In elaborating the contention that the Act merely
\npurports to  override the  judgment of\tthis Court in Sehgal
\nand Chopra  the learned\t counsel referred to the Objects and
\nReasons of  the Act as well as the affidavit filed on behalf
\nof the\tState Government  which would unequivocally indicate
\nthat the  Act was  enacted to get over the judgments of this
\nCourt in Sehgal and Chopra.\n<\/p>\n
     Mr. K.T.S.\t Tulsi, the  learned senior  counsel for the
\nState of  Haryana and Mr. D.D. Thakur and Dr. Rajeev Dhawan,
\nlearned\t senior\t  counsel   appearing\tfor   the   promotee
\nrespondents on\tthe other  hand contended  that the power of
\nthe State  Legislature under  Articles 245  and 246  of\t the
\nConstitution is\t wide enough  to make  law  determining\t the
\nservice conditions  of the  employees of the State and it is
\nundisputed position of law that the legislature can make law
\ngiving it  retrospective effect.  According to\tthe  learned
\ncounsel the  legislature having been aware of the inequities
\nsituation which have been the result of the Rules which were
\noperating  for\tdetermination  of  the\tinter  se  seniority
\nbetween the direct recruits and the promotees as interpreted
\nby this\t Court in  Sehgal and Chopra, intervened in enacting
\nthe Act\t to remove  the aforesaid  inequities not  by merely
\ndeclaring the  interpretation given  by this  Court  to\t the
\nrelevant provisions  of the Rules in Sehgal and Chopra to be
\ninvalid but by making substantial alterations and changes to
\nthe basis itself and as such the legislatures cannot be said
\nto have\t encroached upon  the field  of\t judiciary  nor\t the
\nlegislation can\t be held  to be\t an act of usurpation of the
\njudiciary nor  the legislation\tcan be\theld to be an act of
\nusurpation of  judicial power by the legislatures. According
\nto the learned counsel the basic changes made in the Act are
\nby altering  the definition  of service\t by addition of sub-
\nclause (c), by providing the quota of promotees could exceed
\nbeyond 50%  as per  proviso to\tSection 5(2) and by changing
\nthe very  criteria for determination of seniority namely the
\ncontinuous length  of service  as engrafted in Section 12(2)
\nand these  changes having  been\t made  and  the\t legislative
\ncompetence not having been assailed, the Act must be held to
\nbe valid  piece of legislation. It was also contended by the
\nlearned counsel\t that in  deciding the\tconstitutionality of
\nthe Act\t the Court  can look into the Objects and Reasons of
\nthe Act\t only when  there is  ambiguity in  the\t substantive
\nprovisions  of\tthe  Act  itself,  but\twhere  there  is  no
\nambiguity in  the language  of the  Act which  declares\t the
\nintention  of  the  legislature,  the  Court  would  not  be
\njustified in  looking to  the Objects  and Reasons  for\t the
\nenactment or  the affidavit filed by the State Government to
\nhold that  the legislatures  have usurped the judicial power
\nand have enacted the Act merely to get over the judgments of
\nthis Court  and mandamus  issued by this Court in Sehgal and
\nChopra. According to the learned counsel in enacting the Act
\nthe legislature\t has taken  into account  the needs  of\t the
\nadministration and  laid down the principles for determining
\nthe inter se seniority in consonance with the accepted norms
\nof service  jurisprudence namely  determination of seniority
\non the\tbasis of  length of  continuous service in the cadre
\nwhich was  also observed  by this  Court in  the two earlier
\ncases  while  interpreting  the\t Rules\tof  1961  which\t was
\noperative in  determination of\tinter se  seniority  of\t the
\nemployees. The\tlearned counsel further urged that no vested
\nright of  any employee\thas  been  taken  away\tby  the\t Act
\ninasmuch as to obtain a particular position in the seniority
\nlist within a cadre is neither a vested right of an employee
\nnor can\t be said to be fundamental right under Part – III of
\nthe Constitution.  Mr. Tulsi,  learned counsel appearing for
\nthe State  of Haryana in this context said that by operation
\nof the\tAct no\temployee  whether  a  direct  recruit  or  a
\npromotee would\tbe reverted  to any lower post from the post
\nto which promotion has already been made even if he is found
\nto be junior to others in the rank of Executive Engineer and
\nas such\t the contention\t of Mr. Sachar and Mr. Mahabir Singh
\nthat it\t takes away  a vested  right  of  the  employees  is
\nincorrect  in\tlaw.  Lastly,  it  was\tcontended  that\t the
\nlegislative competence\thaving been conceded and the Act not
\nhaving been  found to  be contrary to any of the fundamental
\nrights under  Part  –  III  of\tthe  Constitution  the\tonly
\nquestion  that\t requires  consideration   is\twhether\t  it
\ntantamounts  to\t  usurpation  of   judicial  power   by\t the
\nlegislature and for the contentions already advanced the Act
\nnot being one merely declaring a law laid down by this Court
\nto be  invalid, there  has been\t no usurpation\tof  judicial
\npower,\tand   therefore,  the  same  is\t a  valid  piece  of
\nlegislation  determining   the\tservice\t conditions  of\t the
\nemployees in the State of Haryana and this Court will not be
\njustified in  holding the  Act to be invalid. A large number
\nof authorities\twere cited  at the  Bar in  support of their
\nrespective contentions\twhich we will notice while examining
\nthe correctness of the rival submissions.\n<\/p>\n
     At the outset it must be borne in mind that in the case
\nof Sehgal  (supra) as  well as Chopra (supra) this Court had
\nnot invalidated\t any provisions of the recruitment rules but
\nmerely\tinterpreted   some  provisions\t of  the  Rules\t for
\ndetermining  the  inter\t se  seniority\tbetween\t the  direct
\nrecruits  and\tthe  promotees.\t  The  Act   passed  by\t the
\nlegislature, therefore,\t is not\t a validation Act but merely
\nan  Act\t  passed  by   the  State   Legislature\t giving\t  it
\nretrospective effect from the date the State of Haryana came
\ninto existence and consequently from the date the service in
\nquestion came  into existence.\tThe power of the legislature
\nunder Article 246(3)<\/a> of the Constitution to make law for the
\nState with  respect to\tthe matters enumerated in List II of
\nthe VIIth  Schedule to\tthe Constitution  is wide  enough to
\nmake law determining the service conditions of the employees
\nof the\tState. In  the\tcase  in  hand\tthere  has  been  no
\nchallenge  to\tthe  legislative  competence  of  the  State
\nlegislature to\tenact the legislation in question and in our
\nview rightly, nor there has been any challenge on the ground
\nof contravention  of Part III of the Constitution. Under the
\nconstitutional scheme  the power  of the legislature to make
\nlaw is\tparamount subject  to the  field of  legislation  as
\nenumerated in  the Entries  in different Lists. The function
\nof the\tjudiciary is  to interpret the law and to adjudicate
\nthe rights of the parties in accordance with law made by the
\nlegislature.  When   a\tparticular   Rule  or\tthe  Act  is
\ninterpreted by\ta Court of law in a specified manner and the
\nlaw  making   authority\t forms\tthe  opinion  that  such  an
\ninterpretation would  adversely effect\tthe  rights  of\t the
\nparties and  would be  grossly inequitious and accordingly a
\nnew set\t of Rule  or  Law  is  enacted,\t it  is\t very  often
\nchallenged as  in the  present case  on the  ground that the
\nlegislatures have usurped the judicial power. In such a case
\nthe Court has a delicated function to examine the new set of
\nlaws enacted  by the legislatures and to find out whether in
\nfact the  legislatures have  exercised the legislative power
\nby merely  declaring an\t earlier  judicial  decision  to  be
\ninvalid and ineffective or the legislatures have altered and
\nchanged the  character of  the legislation  which ultimately
\nmay render  the judicial  decision ineffective. It cannot be
\ndisputed that  the legislatures can always render a judicial
\ndecision ineffective  by enacting  valid law  on  the  topic
\nwithin\tits  legislative  field\t fundamentally\taltering  or
\nchanging its  character retrospectively\t as was held by this
\nCourt in  the case  of Indian Aluminum Company vs. The State
\nof Kerala<\/a>  (1996) 7  Supreme Court Cases 637. What is really
\nprohibited is  that legislature\t cannot in  exercise of\t its
\nplenary power  under Article 245<\/a> and 246<\/a> of the Constitution
\nmerely declare a decision of a Court of Law to be invalid or
\nto be  inoperative in  which case  it would be held to be an
\nexercise of  judicial power. Undoubtedly under the scheme of
\nConstitution  the  legislature\tdo  not\t possess  the  same.
\nBearing in  mind the aforesaid principles it is necessary to
\nexamine the  legality of  the Act  in question. If we do not
\nexamine the  substantive provisions of the Act and merely go
\nby the\tobject and reasons as given for the enactment of the
\nAct as\twell as the counter affidavit field on behalf of the
\nState then the Act would be possibly held to be an intrusion
\nto the judicial sphere by the legislature. The Statements of
\nObjects and  Reasons while  introducing the  Bill in Haryana
\nVidhan Sabha is extracted herein below in extenso:-\n<\/p>\n
     “There    was     separate\t   rules
\n     regulating service\t conditions  and
\n     fixation  of   seniority\tin   the
\n     Engineering Services in P.W.D., B &
\n     R.,   Public    Health   and    PWD
\n     Irrigation\t Branch.   These   rules
\n     although different\t for  the  three
\n     branches were  on\tidentical  lines
\n     with minor\t variations. These rules
\n     have  been\t  interpreted\tin   the
\n     Supreme Court  in the  case of A.N.\n<\/p>\n
     Sehgal versus R.R. Sheoran and S.L.\n<\/p>\n
     Chopra   versus\tB.D.\tSardana.\n<\/p>\n
     Subsequently, the judgment has been
\n     interpreted further  in the case of
\n     A.N. Sehgal  versus R.R. Sheoran by
\n     an order  dated 31st March, 1995 of
\n     the Supreme  Court\t in  a\tContempt
\n     Petition\tfiled\tby   Shri   R.R.\n<\/p>\n
     Sheoran. In the Public Health side,
\n     the seniority  list prepared  under
\n     the directions of the Supreme Court
\n     in\t  S.L.\t  Chopra   versus   B.D.\n<\/p>\n
     Sardana’s case  was  challenged  in
\n     the High  Court which  struck  down
\n     the list.,\t Thereafter,  an  appeal
\n     was  filed\t by  the  State\t in  the
\n     Supreme Court  against the order of
\n     the High Court in the case of State
\n     versus B.D. Sardana. The appeal was
\n     admitted by  the Supreme  Court and
\n     the  operative   portion\tof   the
\n     judgment  of  the\tHigh  Court  was
\n     stayed. The  matter is  pending for
\n     final  decision   in  the\t Supreme
\n     Court, and mean while the seniority
\n     list prepared by the State is being
\n     operated by Public Health Branch.\n<\/p>\n
     2.\t Meanwhile,  consequent\t to  the
\n     directions\t given\tby  the\t Supreme
\n     Court in  the case\t of A.N.  Sehgal
\n     vs. R.R.  Sheoran<\/a> and orders of the
\n     Supreme  Court  dated  31st  March,
\n     1995 in the Contempt Petition filed
\n     by R.R.  Sheoran  subsequently  the
\n     seniority list had to be redrawn in
\n     the case of B & R Branch, which was
\n     totally  at     variance  with  the
\n     manner in\twhich the  seniority was
\n     drawn up  in  the\tcase  of  Public
\n     Health Branch. Thus, the directions
\n     of the Supreme Court in the case of
\n     B &  R Branch  had created a lot of
\n     Administrative    problems\t    with
\n     certain   very    junior\tofficers
\n     getting   undue\tseniority    and
\n     becoming  senior  to  the\tofficers
\n     under  whom  they\twere  previously
\n     working. The  naturally resulted in
\n     sever groupism  and tension between
\n     officers of the department in their
\n     day today working.\n<\/p>\n
     3. In  order to  have uniform rules
\n     for   all\t  three\t  branches    of
\n     Engineering services and to clarify
\n     the  position   in\t an  unambiguous
\n     manner so as to have uniformity and
\n     clarity   in   interpretation,   it
\n     became necessary  to  make\t certain
\n     amendments\t   with\t   retrospective
\n     effect. This  was possible\t only by
\n     enacting  a   legislation\tin  this
\n     regard. As the Haryana Vidhan Sabha
\n     was no  in Session,  it was decided
\n     to\t achieve   the\tpurpose\t through
\n     issue of  an Ordinance on 13th May,
\n     1995. The\tOrdinance  replaced  the
\n     existing rules  for all  the  three
\n     branches of  the PWD and the common
\n     enactment was to govern the service
\n     matters of\t Class-I service  B &  R
\n     Branch, Public  Health  Branch  and
\n     Irrigation Branch.”\n<\/p>\n
     The relevant  portion of  the affidavit  of  Shri\tS.N.
\nTanwar, Joint  Secretary to  the Government of Haryana filed
\nin the\tPunjab and  Haryana High Court indicating the ground
\nwhich impelled\tthe legislature\t to enact the legislation in
\nquestion may be extracted hereinunder:-\n<\/p>\n
     “This interpretation  by the  Hon’ble Supreme Court has
\ncaused great  hardships to the promotees. In order to remove
\nthis hardship  to the  promotees an  Ordinance was issued on
\n13.5.1995 which\t has now  become an Act No. 20 of 1995 after
\nassent of  the Governor\t of Haryana  on 30.11.1995.  If this
\nOrdinance\/Act is  not issued  the net result of the Order of
\nthe  Hon’ble  Supreme  Court  would  be\t that  the  directly
\nrecruited Assistant  Executive Engineer\t would be considered
\nto be  Executive Engineer  from the date he was recruited as
\nAssistant Executive  Engineer.\tThe  interpretation  of\t the
\njudgment of  the Supreme  Court create such a situation that
\npersons who  were promotees  and were  working as  Executive
\nEngineer years before even the Assistant Executive Engineers
\nwere recruited\tbecame junior  to the latter when the latter
\nwas promoted  as  Executive  Engineer.\tThis  w\t as  somehow
\nconsidered by  the Government to be very seriously hampering
\nproper working of the department. Giving such a seniority to
\na person  recruited as\tAssistant  Executive  Engineer\thave
\neffected adversely  the effective  working of the department
\nbecause the  persons who are occupying the posts much higher
\nto the\tExecutive Engineer  and above could became junior to
\nAssistant Executive Engineer who is recruited even after the
\npromotees have been discharging their duties on these higher
\nposts. If  such a  situation will  continue to\tprevail\t the
\npromotees will\tnot be\table to\t working that  capacity when
\nthey would  considered to  be junior to the persons who were
\nrecruited  to\tClass  I   service  much  later\t than  their
\npromotions.  Moreover,\tthe  Government\t of  Haryana  always
\nconsidered that\t the Assistant\tExecutive Engineer  directly
\nrecruited would\t deem to be having a seniority from the date
\nwhen he\t is actually  promoted as  Executive Engineer. Since
\nthe Supreme  Court did\tnot accept  this  interpretation  it
\nbecame essential  for the  Government of  Haryana inter alia
\nfor  the   reasons  mentioned\tabove  to   issue  this\t Act
\nretrospectively.”\n<\/p>\n
     If these materials are alone considered then one may be
\npersuaded to  accept the  submission  of  Mr.  Sachhar,\t the
\nlearned senior\tcounsel appearing  for the direct recruits –
\nWrit Petitioners,  that the  Act in  question was  merely to
\ndeclare the  earlier  decisions\t of  this  Court  in  Sehgal
\n(supra) and  in Chopra\t(supra) a  invalid and\tas  such  is
\nusurpation of  the judicial power by the legislature. But it
\nis a  cardinal\trule  of  interpretation  that\tObjects\t and
\nReasons of  a statue  is to be look into as an extrinsic aid
\nto find\t out legislative intent only when the meaning of the
\nstatute by  its ordinary  language is  obscure or ambiguous.
\nBut if\tthe words used in a statue are clear and unambiguous
\nthen  the  statue  itself  declares  the  intention  of\t the
\nlegislature and\t in such  a case it would not be permissible
\nfor a  Court to\t interpret  the\t Statute  by  examining\t the
\nObjects the Reasons for the Statute question.\n<\/p>\n
     In the case of ASWINI KUMAR GHOSH AND VS. ARABINDA BOSE
\nAND ANOTHER, S.C.R. (1953) 1, Patanjali Sastri, J., speaking
\nfor the\t majority of  the Court,  emphatically ruled out the
\nObjects and  Reasons appended  to  a  Bill  an\taid  to\t the
\nconstruction of a statute. It was observed:\n<\/p>\n
     “As regards  the propriety\t of  the
\n     reference\tto   the  Statement   of
\n     Objects and  Reasons,  it\tmust  be
\n     remembered that  it seeks\tonly  to
\n     explain what  reasons  induced  the
\n     mover to  introduce the Bill in the
\n     House and what objects he sought to
\n     achieve.  But   those  objects  and
\n     reasons may  or may  not correspond
\n     to the objective which the majority
\n     of members\t had in\t view when  they
\n     passed it\tinto law.  The Bill  may
\n     have  undergone   radical\t changes
\n     during  its   passage  through  the
\n     House or  Houses, and  there is  no
\n     guarantee that  the  reasons  which
\n     led to  its  introduction\tand  the
\n     objects  thereby\tsought\t to   be
\n     achieved  have  remained  the  same
\n     throughout till  the  Bill\t emerges
\n     from the  House as\t an Act\t of  the
\n     Legislature, for  they do\tnot form
\n     part of  the Bill and are not voted
\n     upon  by  members.\t We,  therefore,
\n     consider  that   the  Statement  of
\n     Objects and Reasons appended to the
\n     Bill should  be ruled out as an aid
\n     to\t  the\t construction\tof   the
\n     statute.”<\/p><\/blockquote>\n
     In the  case of  THE CENTRAL  BANK OF  INDIA VS.  THEIR
\nWORKMEN. S.C.R.\t (1960) 200,  S.K. DAS,\t J., reiterated\t the
\nprinciple:\n<\/p>\n
     “The  Statement   of  Objects   and
\n     Reasons is not admissible, however,
\n     for construing the section far less
\n     can it  control  the  actual  words
\n     used”.\n<\/p><\/blockquote>\n
     Sinha, J.,\t in the\t case of  STATE OF  WEST BENGAL\t VS.\n<\/p><\/blockquote>\n
UNION OF INDIA, S.C.R. (1) (1964) 371 held:-\n<\/p>\n
     “It  is   well  settled   that  the
\n     Statement of  Objects  and\t Reasons
\n     accompanying    a\t   Bill,    when
\n     introduced in  Parliament cannot be
\n     used to  determine the true meaning
\n     and  effect   of  the   substantive
\n     provisions\t of  the  statute.  They
\n     cannot  be\t  used\texcept\tfor  the
\n     limited  purpose  of  understanding
\n     the background  and the  antecedent
\n     state of  affairs leading up to the
\n     legislation”.\n<\/p><\/blockquote>\n
     In the case of TATA ENGINEERING AND LOCOMOTIVE CO. LTD.\n<\/p><\/blockquote>\n
VS. GRAM  PANCHAYAT, PIMPRI  WAGHERE, (1976) 4 SCC 177, this
\nCourt did not accept the recital in the Statement of Objects
\nand Reasons  that the amendment was made for the reason that
\nthe Panchayats could not levy tax on buildings and held that
\nthe word  `houses’  as\toriginally  used  was  comprehensive
\nenough to  include all buildings including factory buildings
\nand  that   the\t amendment   only  made\t explicit  what\t was
\nimplicit”.\n<\/p>\n
     The general rule of interpretation is that the language
\nemployed is primarily the determining factor to find out the
\nintention of  the legislature. Gajendragadker, J. as he then
\nwas in\tthe case  of KANAI LAL SUR VS. PARAMNIDHI SADHUKHAN,
\nS.C.R. 1958  360 had  observed that  “the first\t and primary
\nrule of construction is that he intention of the legislature
\nmust be\t found in the words used by the legislature itself”.
\nIn the case of ROBERT WIGRAM CRAWFORD VS. RICHARD SPOONER, 4
\nMIA 179\t (PC) p.  1987 Lord Brougham had stated thus “If the
\nlegislature did\t intend that  which  it\t has  not  expressed
\nclearly; much  more if\tthe legislature\t intended  something
\nvery different;\t if the\t legislature intended  pretty nearly
\nthe opposite of what is said, it is not for judges to invent
\nsomething which\t they do  not meet  within the\twords of the
\ntext”. Thus  when the  plain meaning  of the words used in a
\nstatute indicate  a particular\tstate of  affairs the courts
\nare not\t required to  get themselves busy with the “supposed
\nintention” or with “the policy underlying the statute” or to
\nrefer the objects and reasons which was accompanied the Bill
\nwhile introducing  the same on the floor of the legislation.
\nIt is  only when  the plain meaning of the words used in the
\nstatute creates\t an ambiguity  then it may be permissible to
\nhave the  extrinsic aid\t of  looking  to  the  Statement  of
\nObjects and  Reasons for  ascertaining the true intention of
\nthe legislatures. In the aforesaid state affairs to find out
\nwhether the  impugned Act  is a usurpation of judicial power
\nby the\tlegislature it\twould not  be permissible to look to
\nthe Statement  of Objects  and Reasons which accompanied the
\nBill  while  introducing  the  same  on\t the  floor  of\t the
\nlegislation nor\t the affidavit\tfiled by  an officer  of the
\nGovernment would control the true and correct meaning of the
\nwords of  the statute.\tIt would, therefore, be necessary to
\nexamine the  Act itself and the changes brought about by the
\nAct  and   the\tconsequences  thereof  in  relation  to\t the
\ndecisions of  this Court  in Sehgal  and Chopra interpreting
\nthe Rules  of seniority\t which were in force and which stood
\nrepealed by the Act itself.\n<\/p>\n
     The Preamble of the Act which is a key to the enactment
\nclearly indicates  that it  is an  act for  consolidation of
\nruled relating to different Branches. It reads thus:-\n<\/p>\n
     “to regulate  the\trecruitment  and
\n     conditions of  service  of\t persons
\n     appointed to the Haryana Service of
\n     Engineers, Class  I,  Public  Works
\n     Department\t (Building   and   Roads
\n     Branch), (Public Health Branch) and
\n     (Irrigation Branch) respectively.”<\/p><\/blockquote>\n
     A comparative study of the provisions of the 1961 Rules
\nframed by  the Governor\t in  exercise  of  power  under\t the
\nproviso to  Article 309<\/a>\t of the\t Constitution and  1995\t Act
\npassed by  the Haryana\tLegislature indicate  the  following
\nchanges which have been brought about by the Act:\n<\/p>\n
     (a) The  definition  of  member  of
\n     service in Rule 2(12) of 1961 rules
\n     has been  amended.\t Sub-clause  (c)
\n     has been  inserted in  Clause 12 of
\n     Section 2\tof 1995\t Act by which an
\n     officer awaiting  appointment to  a
\n     cadre post\t has been  made a member
\n     of service.\n<\/p><\/blockquote>\n
     (b) A  proviso has\t been  added  to
\n     Section  5(2)  of\t1995  Act  which
\n     expressly\tprovides  for  exceeding
\n     the  quota\t  of  50%   of\tofficers
\n     promoted to  the post  of Executive
\n     Engineers in  the\tevent,\tadequate
\n     number   of   Assistant   Executive
\n     Engineers are not available.\n<\/p><\/blockquote>\n
     (c) The  percentage  of  quota  has
\n     been altered from 50% to 75% in the
\n     case  of\tIrrigation   Branch   by
\n     incorporating a  second proviso  to
\n     Section 5(2) of the Act.\n<\/p><\/blockquote>\n
     (d)  The\trule  with   regard   to
\n     determination of seniority has been
\n     completely\t changed  from\tthe  one
\n     that existed  in  1961 rules. While
\n     under the\t1961 rules, according to
\n     Rule 12, no member of service could
\n     enjoy the benefit of service except
\n     in\t accordance   with   the   quota
\n     prescribed under  Rule    under
\n     Clause 2  of Section 12 of the Act,
\n     length of\tcontinuous  service  for
\n     the post  of  executive  engineers,
\n     has been  made the sole determining
\n     factor   for    the   fixation   of
\n     seniority.”<\/p><\/blockquote>\n
     The aforesaid changes and alterations in the Act itself
\nand giving  it retrospective effect w.e.f. the date when the
\nState of  Haryana came\tinto existence\tand consequently the
\nservice of  engineers  came  into  existence,  rendered\t the
\nearlier\t decisions  of\tthis  Court  in\t Sehgal\t and  Chopra
\nineffective. The provisions of the Act and the definition of
\n“service” in  Section 2(12)(c),\t proviso to Section 5(2) and
\nthe criteria  for promotion  which was\tengrafted in Section
\n12(2) and  making it  retrospective w.e.f.  1.11.1966,\twhen
\ninterpreted lead  to the  only conclusion  that\t this  Court
\ncould not have rendered the decision in Sehgal and Chopra on
\nthe face  of the  aforesaid provisions\tof the\tAct. It\t is,
\ntherefore, not\ta case\tof legislature\tby mere\t declaration
\nwithout anything  more overriding  a judicial decision but a
\ncase  of   rendering  a\t judicial  decision  ineffective  by
\nenacting a  valid law  within the  legislative field  of the
\nlegislature. It\t would be  appropriate to  extract a passage
\nfrom the  judgment of this Court in INDIAN ALUMINIUM CO. AND
\nOTHERS VS.  STATE OF KERALA AND OTHERS, (1996) 7 S.C.C. 637,
\nto  which   two\t of  us\t were  parties\t(Ramaswamy.  J.\t and
\nPattanaik, J.):\n<\/p>\n
     “In a democracy governed by rule of
\n     law, the  legislature exercises the
\n     power under  Articles 245\tand  246
\n     and other\tcompanion articles  read
\n     with the  entries in the respective
\n     lists in  the Seventh  Schedule  to
\n     make the  law which  includes power
\n     to amend  the law.\t Courts in their
\n     concern and  endeavour to\tpreserve
\n     judicial  power   equally\tmust  be
\n     guarded to\t maintain  the\tdelicate
\n     balance devised by the Constitution
\n     between   the    three    sovereign
\n     functionaries. In\torder that  rule
\n     of\t  law\t permeates   of\t  fulfil
\n     constitutional    objectives     of
\n     establishing an  egalitarian social
\n     order,  the   respective  sovereign
\n     functionaries  need  free\tplay  in
\n     their joints  so that  the march of
\n     social progress  and order\t remains
\n     unimpeded. The smooth balance built
\n     with  delicacy   must   always   be
\n     maintained.  In   its  anxiety   to
\n     safeguard\tjudicial  power,  it  is
\n     unnecessary to  be overzealous  and
\n     conjure  up   incursion  into   the
\n     judicial preserve\tinvalidating the
\n     valid law competently made.”<\/p><\/blockquote>\n
     It would  be appropriate  now to  examine the different
\ncitations made\tat the\tBar. Mr.  Sachar, the learned senior
\ncounsel in  support of\this  contention\t that  the  impugned
\njudgment is  essentially a  usurpation of the judicial power
\nby the\tlegislature relied  upon the decisions of this Court
\nin B.S.\t Yadav and  others vs. State of Haryana & others<\/a> and
\nPritpal Singh  and others  vs. State  of Punjab and Others<\/a> –
\n1980 (Supp.)  Supreme Court  Cases 524,\t State of  Gujarat &
\nAnother etc. vs. Raman Lal Keshav Lal Soni and others etc. –
\n(1983) 2  Supreme Court\t Cases 33,  Ex. Capt. K.C. Arora and
\nAnother vs.  State of Haryana and Others<\/a>. – (1984) 3 Supreme
\nCourt Cases  281, T.R. Kapur and others vs. State of Haryana
\nand  others<\/a>  1986  (Supp)  Supreme  Court  Cases  584,\tP.D.
\nAggarwal and others  vs. State of U.P. and others<\/a> – (1987) 3
\nSupreme Court Cases 622, Madan Mohan Pathak and Another etc.
\nvs. Union of India and others – (1978) 2 Supreme Court Cases\n<\/p>\n
50.  In\t  B.S.\tYadav’s\t  case\t(supra)\t  the  question\t for
\nconsideration before  this Court  was whether Governor could
\nframe rules  relating to  conditions of\t service of judicial
\nofficers, and  if so,  then whether  such  rule\t contravenes
\nArticle 235<\/a>  of the  Constitution? This\t Court held  that  a
\ncombined reading  of Article  309<\/a> and Article 235<\/a> would lead
\nto  the\t conclusion  that  though  the\tlegislature  or\t the
\nGovernor  has\tthe  power  to\tmake  Rules  regulating\t the
\nrecruitment  and  the  conditions  of  service\tof  judicial
\nofficers of  the State\tand thereby  regulate  seniority  of
\njudicial  officers   by\t laying\t  down\trules\tof   general
\napplication, but  that power cannot be exercised in a manner
\nwhich will  lead to  interference with the control vested in
\nthe High  Court\t by  the  first\t part  of  Article  235.<\/a>  In
\nparagraph 76  of the  judgment of Court examined the amended
\nrule and the retrospectively of the same and held that since
\nthe Governor  exercises\t the  legislative  power  under\t the
\nproviso to  Article 309<\/a>\t of the\t Constitution, it is open to
\nhim to\tgive retrospective operation to the rules made under
\nthat provision.\t But the date  from which the rules are made
\nto operate  must be  shown to  bear, either from the face of
\nthe rules  or by  extrinsic evidence,  reasonable nexus with
\nthe provisions\tcontained in  the rules, especially when the
\nretrospective\teffect extends\tover a\tlong period  and  no
\nnexus is  shown in  the present\t case on behalf of the State
\nGovernment. On\tthe aforesaid  reasonings the  Court came to
\nthe conclusion\tthat the retrospective effect that was given
\nto the\trules is  bad in  law. In the said case neither this
\nCourt examined\tthe question  of legislature in-validating a
\ndecision of  a competent  Court\t of  law  nor  the  question
\nwhether there has been any intrusion by the legislature into
\nthe judicial  sphere. We fail to understand how this case is
\nof any\tassistance to  the petitioners in the Writ Petitions
\nchallenging the validity of the Act.\n<\/p>\n
     In Raman  Lal’s  case  (supra)  the  employees  of\t the
\nPanchayat Services  filed a  Writ Petition  in Gujarat\tHigh
\nCourt claiming\tthat they  are entitled\t to the\t benefit  of
\nrevision of  scales of\tpay which  were made on the basis of
\nthe recommendation  of the  Pay\t Commission.  The  State  of
\nGujarat resisted  those petitions  on the  ground  that\t the
\nmembers\t of   the  Panchayat  Service  were  not  government
\nservants and,  therefore, they are not entitled to claim the
\nrelief asked for. The High Court of Gujarat allowed the Writ
\nPetition on coming to the conclusion that the members of the
\nPanchayat  Service   belonging\tto   the  local\t cadre\twere
\ngovernment servants  and directed  the State  Government  to
\nmake  suitable\t orders\t under\t Gujarat  Panchayat  Service
\n(Absorption, seniority,\t pay and  allowance) Rules, 1965 and
\nseveral other directions to fix the pay scales and allowance
\nand other  conditions of  service of  those employees in par
\nwith the  State Government  servants. The  State  had  filed
\nappeal against\tthe said  judgment in  the Supreme Court and
\nduring the  pendency of\t the appeal  an Ordinance was passed
\nwhich was  later on  replaced by the Act. The constitutional
\nvalidity of  the amending  Act was  challenged by filing the
\nWrit  Petition\t by  the  ex-Municipal\temployees  who\twere
\nincluded  in  the  local  cadre.  This\tCourt  came  to\t the
\nconclusion that\t the  Panchayat\t Service  constituted  under
\nSection 203  of the  Gujarat  Panchayat’s  Act\tis  a  Civil
\nService of  the State  and the\tmembers of  the service\t are
\ngovernment  servants.\tThe  Court,  however,  examined\t the
\nvalidity of the Amending Act<\/a> and came to the conclusion that
\nbefore the  Amending Act<\/a>  was passed  the employees  who had
\nbeen allocated\tto the\tPanchayat Service  had achieved\t the
\nstatus of  government servants\tunder the  provisions of the
\nprincipal Act  of 1961 and that status as government servant
\ncannot\tbe  extinguished  so  long  as\tthe  posts  are\t not
\nabolished  and\t their\tservices   were\t not  terminated  in
\naccordance  what  the  provisions  of  Article\t311<\/a>  of\t the
\nConstitution. It is in this context it was observed:-\n<\/p>\n
     “The  legislation\t is   pure   and
\n     simple, self-deceptive,  if we  may
\n     use   such\t  an   expression   with
\n     reference\tto   a\tlegislature-made
\n     law. The legislature is undoubtedly
\n     competent\t to    legislate    with
\n     retrospective effect  to take  away
\n     or impair any vested right acquired
\n     under existing  laws but  since the
\n     laws  are\t made  under  a\t written
\n     Constitution, and\tto have\t conform
\n     to\t the   dos  and\t don’ts\t of  the
\n     Constitution,  neither  prospective
\n     nor retrospective\tlaws can be made
\n     so\t as  to\t contravene  fundamental
\n     rights. The  law must  satisfy  the
\n     requirements  of  the  Constitution
\n     today  taking   into  account   the
\n     accrued or\t acquired rights  of the
\n     parties today.  The law cannot say,
\n     20 years  ago the\tparties\t had  no
\n     rights, therefore, the requirements
\n     of\t  the\tConstitution   will   be
\n     satisfied if  the law is dated back
\n     by 20  years. We are concerned with
\n     today’s rights and not yesterday’s.
\n     A\tlegislature   cannot   legislate
\n     today with reference to a situation
\n     that  obtained  20\t years\tago  and
\n     ignore the\t march of events and the
\n     constitutional  rights  accrued  in
\n     the course\t of the\t 20 years.  That
\n     would    be     most     arbitrary,
\n     unreasonable  and\t a  negation  of
\n     history.”<\/p><\/blockquote>\n
     Thus the  Amending Act  was held  to have\toffended the
\nconstitutional provisions of Article 14<\/a> and Article 311<\/a> and,
\ntherefore, was struck down.\n<\/p>\n
     Thus is  Raman Lal,  the amending Act had the effect of
\ndepriving the  ex-Municipal employees  of  their  status  of
\nmembership under  the State without any option to them which
\nwas considered\tto be  unconstitutional. In the case in hand
\nthe impugned  Act and  its retrospectivity merely alters the
\nseniority within  a cadre  and such  an\t alteration  neither
\ncontravenes any\t constitutional provision nor it affects any
\nright under  Part – III of the Constitution. In this view of
\nthe matter the aforesaid decision is of no assistance to the
\ndirect recruit petitioners who have assailed the legality of
\nthe Act.  In K.C.  ARORA’s case,  (1984) 3  S.C.C.  281\t the
\namended provisions  being  given  retrospective\t effect\t was
\nfound to have affected the accrued fundamental rights of the
\nparties. Following  the earlier\t judgment of  this Court  in
\nSTATE OF GUJARAT vs. RAMAN LAL KESHAV LAL SONI<\/a>, (1983) 2 SCC
\n33, this Court held that the Government cannot take away the
\naccrued rights\tof the\tpetitioners and\t the appellants,  by
\nmaking amendment  to the rules with retrospective effect. In
\nthe aforesaid  case under  the rules  in force the seniority
\nhad been determined by counting the period military service.
\nUnder the  amended rules  by giving  it retrospective effect
\nthe aforesaid  benefit had  been  taken\t away.\tThis  Court,
\ntherefore, held\t that in  view of the rules in force and the
\nassurances given  by the  Government the  accrued  right  of
\nconsidering the military service towards seniority cannot be
\nretrospectively taken  away. In\t the case  in hand  no\tsuch
\naccrued rights\tof the\tdirect recruits are being taken away
\nby  the\t  Act.\tOn  the\t other\thand  on  account  of  gross
\ninequitious situation  the legislatures\t have enacted an Act
\nin consonance  with  the  normal  service  jurisprudence  of
\ndetermining the\t seniority on the basis of continuous length
\nof service  in a  cadre. The  aforesaid decision, therefore,
\ncannot be said to be a decision in support of the contention
\nthat legislature have usurped the judicial power nor is it a
\ndecision in  support of\t the contention that by the impugned
\nAct any\t fundamental rights of the direct recruits have been
\ninfringed. In  the case of T.R. KAPUR AND OTHER vs. STATE OF
\nHARYANA AND  OTHERS<\/a>, 1986  (supp) SCC 584, when the validity
\nof Punjab  Service of  Engineers, Class\t I, PWD\t (Irrigation
\nbranch) Rules,\t1964 as\t amended  by  State  of\t Haryana  by
\nnotification dated  June 22,  1984 came up for consideration
\nthis Court  found that the said rule is violative of Section
\n82(6)<\/a> of  the Punjab  Reorganisation Act, 1966, as the prior
\napproval of  the Central  Government had  not been taken. On
\nthe question  of power\tof the Governor of frame Rules under
\nproviso to  Article 309<\/a>\t and to give it retrospective effect
\nthe  Court  held  that\tthough\tthe  rules  can\t be  amended
\nretrospectively but  any benefit accrued under existing rule
\ncannot be  taken away.\tIn other words a promotion which has
\nalready been  held in  accordance with\tthe rules  in  force
\ncannot be  nullified by\t the  amended  rules  by  fixing  an
\nadditional qualification  for promotion. By the impugned Act
\nthe Haryana  Legislatures have\tnot purported to nullify and
\npromotion already  made under  the 1961\t Rules which  was in
\nforce prior  to being repealed by the impugned Act. Even Mr.
\nTulsi, appearing  for the State, submitted that no promotion
\nalready made  under the pre-amended rules will be altered in
\nany manner by giving effect to the provisions of the Act. In
\nthis view  of the  matter, the aforesaid decision is also of
\nno assistance  to the direct recruits. In MADAN MOHAN PATHAK
\nAND ANOTHER  vs. UNION OF INDIA AND OTHERS<\/a>, (1978) 2 SCC 50,
\na seven Judge Bench of this Court considered the question of
\nthe power  of the  legislature to  annual a  judgment of the
\ncourt giving effect to rights of a party. There has ben some
\nobservations in\t the aforesaid\tcase which  may support\t the
\ncontention of  Mr. Sachar  inasmuch as\tthis Court  observed
\nthat the  rights which\thad passed  into those embodied in a
\njudgment and  become the  basis of  a mandamus from the High
\nCourt could  not be  taken away\t in an indirect fashion. The
\nmain plank  of Mr.  Sachar’s  argument\tis  that  after\t the
\njudgment of this Court in Sehgal and Chopra interpreting the
\nrules  of   seniority  between\t the  direct   recruits\t and
\npromotees, the\tdirection  of  this  Court  to\tre-draw\t the
\nseniority list\taccording to the principle laid down by this
\nCourt  has   been  taken   away\t by  the  enactment  of\t the
\nlegislature and\t thus there  has  been\tan  in-road  of\t the
\nlegislature into  the judicial sphere. But a deeper scrutiny
\nof the decision of this Court in Pathak will not sustain the
\narguments advanced  by\tMr.  Sachar.  In  Pathak’s  case  in
\naccordance with\t Regulation 58 a settlement had been arrived
\nat for\tpayment of bonus to Class III and Class IV employees
\non 24th\t of January,  1974 and\tthe said settlement had been
\napproved by  the  Central  Government.\tNotwithstanding\t the
\nsettlement when\t the Life  Insurance Corporation did not pay
\nbonus, the employees approached the Calcutta High Court. The
\nHigh Court,  therefore, issued a writ of mandamus on 21st of
\nMay, 1976 calling upon the Life Insurance Corporation to pay
\nthe bonus  in accordance  with the  settlement in  question.
\nAgainst the  judgment of  the learned Single Judge a Letters
\nPatent Appeal  was preferred  and while\t the said appeal was
\npending, the  Life Insurance  Corporation  (Modification  of
\nSettlement) Act,  1976 came  into force on 29th of May, 1976
\nand Section  3<\/a> thereof\tpurported to nullify the judgment of
\nthe Calcutta  High  Court  by  the  non-obstante  clause  in
\nrelation to  provisions of Industrial Disputes Act<\/a>. In other
\nwords the  Calcutta High  Court while  issuing mandamus\t had
\nheld the  settlement has  a binding  effect once approved by
\nthe Central Government and the same cannot be rescinded. But
\nthe impugned  Act purported  to nullify\t the rights  of\t the
\nemployees working under Class III and Class IV to get annual
\ncash bonus  in terms  of such  settlement.  It\tis  in\tthis
\ncontext in  the majority  judgment of the Court delivered by
\nBhagwati, J., it was observed:\n<\/p>\n
     “that the\tjudgment  given\t by  the
\n     Calcutta High Court is not merely a
\n     declaratory  judgment   holding  an
\n     impost or tax to be invalid so that
\n     t validation statute can remove the
\n     defect pointed  out by the judgment
\n     amending the law with retrospective
\n     effect and\t validate such impost or
\n     tax. It is a judgment giving effect
\n     to the  right of the petitioners to
\n     annual   cash   bonus   under   the
\n     settlement by  issuing  a\twrit  of
\n     mandamus directing\t the LIC  to pay
\n     the amount\t of such  bonus.  If  by
\n     reason of\tretrospective alteration
\n     of the  factual or legal situation,
\n     the judgment is rendered erroneous,
\n     the remedy\t may be by way of appeal
\n     or\t review\t  but  so  long\t as  the
\n     judgment  stands,\t if  cannot   be
\n     disregarded or  ignored and it must
\n     be obeyed by the LIC. Therefore, in
\n     any event,\t irrespective of whether
\n     the      impugned\t     Act      is
\n     constitutionally valid  or not, the
\n     LIC is  bound to  obey the\t writ of
\n     mandamus  issued  by  the\tCalcutta
\n     High  Court  and  pay  annual  cash
\n     bonus for the year April 1, 1975 to
\n     March 31, 1976 to the Class III and
\n     Class IV employees.”<\/p><\/blockquote>\n
     In making\tthe aforesaid  observation the Court did not
\nconsider the constitutionality of the Act but went by theory
\nthat the  mandamus issued  by the court calling upon a party
\nto confer  certain benefits to the adversary unless annulled
\nby way\tof appeal or review has to be obeyed. This principle
\nhas no\tapplication to\tthe case  in hand  as the  nature of
\nmandamus which\thas been  issued by this Court in Sehgal and
\nChopra\twas  merely  a\tdeclaration  of\t the  principles  of
\nseniority as  per 1961 Rules and the State Government was to
\ndraw up\t the seniority\tlist in\t accordance  with  the\tsaid
\nRules. The  legislature by  enacting the  Act and  giving it
\nretrospective effect  made several vital changes both on the
\ndefinition  of\t service  as   well  as\t  the  criteria\t for
\ndetermining  the  inter\t se  seniority\tbetween\t the  direct
\nrecruits and  promotees. The impugned Act as has been stated
\nearlier has  not taken away any accrued rights of the direct
\nrecruits,  and\t therefore,  the  aforesaid  observation  in
\nPathak’s case  really will  be of  no assistance in deciding
\nthe question  as to whether the Act purports to have made an
\nin-road into the judicial sphere. The majority judgment came
\nto hold\t that the  impugned Act\t is violative  of Article 31<\/a>
\nClause (2)  as\tthe  effect  of\t the  Act  was\tto  transfer
\nownership  debts  due  owing  to  Class\t III  and  Class  IV
\nemployees in  respect of  annual  cash\tbonus  to  the\tLife
\nInsurance corporation  and there  has been  no provision for
\npayment of any compensation of the compulsory acquisition of
\nthese debts. It may be stated that the majority judgment did
\nnot consider  the question as to whether the legislatures by
\nenacting the  Act have\tusurped the  judicial power and have
\nmerely declared\t the judgment of a competent court of law to
\nbe  invalid.   Beg,  C.J.  in  his  concurring\tjudgment  in
\nparagraph 32 of the judgment, however, has observed:\n<\/p>\n
     “that the\treal object  of the  Act
\n     was to  set aside the result of the
\n     mandamus  issued  by  the\tCalcutta
\n     High Court,  though,  it  does  not
\n     mention as such, and therefore, the
\n     learned Judge  held that  Section 3<\/a>
\n     of the  Act would\tbe  invalid  for
\n     trenching upon the judicial power.”<\/p><\/blockquote>\n
     Three other  learned Judges,  namely; Y.V. Chandrachud,
\nS. Murtaza  Fazal Ali and P.N. Shinghal. JJ. agreed with the
\nconclusion of  Bhagwati, J.  but  preferred  to\t rest  their
\ndecision on  the sole  ground that the impugned Act violates
\nthe provisions\tof Article  31(2)<\/a> of the Constitution and in
\nfact they  considered it  unnecessary to express any opinion
\non the\teffect of the judgment of the Calcutta High Court in
\nWrit Petition  No. 371\tof 1976.  Thus out  of seven learned
\nJudges, six  learned Judges  rested their  decision  on\t the
\nground that  the impugned  Act violates Article 31(2)<\/a> of the
\nConstitution and  did not consider the enactment in question
\nto be  an  act\tof  usurpation\tof  judicial  power  by\t the
\nlegislature. The  observation of  Beg, C.J., in paragraph 32
\ndoes not  appear  to  be  in  consonance  with\tthe  several
\nauthorities of\tthis Court  on the  point  to  be  discussed
\nhereafter. Thus\t the aforesaid\t decision  cannot be pressed
\ninto service  in support  of Mr. Sachar’s contention. In the
\naforesaid premises  the authorities  cited by  Mr. Sachar in
\nfact do\t not support  the content  in urged  by the  learned
\nsenior counsel and on the other hand a series of authorities
\nof this\t Court to be discussed hereafter are directly on the
\npoint  unequivocally   indicating  that\t the  power  of\t the
\nlegislature to\tenact law and giving it retrospective effect
\nwhich may  factually render  a decision of a competent court
\nof law ineffective cannot be whittled down.\n<\/p>\n
     In I.N. SAXENA vs. THE STATE OF MADHYA PRADESH<\/a> (1976) 3
\nSCR 237\t a contention  had been\t raised with  regard to\t the
\nvalidity of  an Act  to the  effect that  the Act  has\tbeen
\npassed to  over rule  a decision  of this  Court  which\t the
\nlegislature has\t no power  to do.  In that case the State of
\nMadhya Pradesh\thad raised  age of compulsory retirement for
\ngovernment servants  from 55  years to 58 years but the very
\nMemorandum increasing  the age\tof superannuation  empowered
\nthe Government\tto retire  a government\t servant  after\t the
\nservant attains\t the age of 55 years. Thereafter Rules under
\nproviso to  Article 309<\/a>\t of  the  Constitution\twere  framed
\nwhereby the age of superannuation was raised to 58 years and
\nthere  was   no\t provision   in\t the  Rules  empowering\t the
\ngovernment to  retire a\t government servant after the age of
\n55 years.  The employee concerned, however, was retired from
\nservice on  completion of  55 years  and the  said order  on
\nbeing challenged  the Supreme  Court held that the appellant
\nwill be\t deemed to  have continued in service inspite of the
\norder till  he attains\tthe age\t of 58\tyears and  since the
\nappellant had already attained the age of 58 years it is not
\npossible to  direct that he should be put in service. But he
\nwill be\t entitled to  such benefits an may accrue now to him
\nby virtue  of the  success of  the Writ\t Petition. After the
\njudgment of  the Supreme  Court or Ordinance was promulgated
\nwhich later  on became an Act of the State of Madhya Pradesh
\nand the\t said Act validated the retirement of the government
\nservants including the appellant Saxena despite the judgment
\nof the\tCourt. The Act<\/a> was given retrospective effect and it
\nempowered a government to retire a government servant on his
\nattaining the  age of  55 years\t and the  Amending  Act<\/a>\t was
\nchallenged on  the ground  that the  legislature has usurped
\nthe judicial  power.  This  Court  had\tnegatived  the\tsaid
\ncontention and held:-\n<\/p>\n
     “The    distinction    between    a
\n     “legislative” act\tand a “judicial”\n<\/p>\n
     act is  well known,  though in some
\n     specific instances\t the line  which
\n     separates\tone  category  from  the
\n     other    may    not    be\t  easily
\n     discernible.  Adjudication\t of  the
\n     rights of\tthe parties according to
\n     law enacted by the legislature is a
\n     judicial\t function.     In    the
\n     performance of  this function,  the
\n     court interprets  and gives  effect
\n     to the  intent and\t mandate of  the
\n     legislature  as   embodied\t in  the
\n     statute. On  the other  hand, it is
\n     for the legislature to lay down the
\n     law, prescribing  norms of\t conduct
\n     which  will   govern  parties   and
\n     transactions  and\tto  require  the
\n     court to give effect to that law.\n<\/p>\n
     While, in\tview of this distinction
\n     between  legislative  and\tjudicial
\n     functions, the  legislature  cannot
\n     by\t a   bare  declaration,\t without
\n     more, directly  over-rule,\t reverse
\n     or over-ride  a judicial  decision,
\n     it may,  at any time in exercise of
\n     the plenary  powers conferred on it
\n     by\t Article  245<\/a>  and  246<\/a>\t of  the
\n     Constitution  render   a\tjudicial
\n     decision ineffective by enacting or
\n     changing\t with\t  retrospective,
\n     curative or neutralising effect the
\n     conditions on  which such\tdecision
\n     is based.\tAs pointed  out by  Ray,
\n     C.J. in  Indira Nehru Gandhi v. Raj
\n     Narain<\/a>, the  rendering  ineffective
\n     of judgments or orders of competent
\n     courts and\t tribunals  by\tchanging
\n     their    basis    by    legislative
\n     enactment is  a well-known\t pattern
\n     of\t all   validating   Acts.   Such
\n     validating\t   legislation\t   which
\n     removes\t the\t  causes     for
\n     ineffectiveness  or  invalidity  of
\n     actions or\t proceedings is\t not  an
\n     encroachment on judicial power.”\n<\/p>\n
     In the  case of  M\/S UTKAL\t CONTRACTORS AND JOINERY (P)
\nLTD. AND  OTHERS vs.  STATE OR\tORISSA<\/a>, 1987 (Supp.) Supreme
\nCourt Cases  751 a  similar contention\thad been  raised but
\nnegatived by  this Court. In that case the right to collect,
\nsale and  purchase of  sale seeds  had\tbeen  given  to\t the
\npetitioner and\tduring the subsistence of the contact Orissa
\nlegislature passed  an\tAct  called  Orissa  Forest  Produce
\n(control of  trade) Act\t 1981. Under  the provisions  of the
\nsaid Act  the State  issued Notification  on 9.12.1982 which
\nhad the effect of rescinding the contract of the petitioner.
\nThat order  was challenged  by filing a Writ Petition which,
\nhowever, was  dismissed by  the Orissa\tHigh  Court.  On  an
\nappeal this  Court reversed  the decision of the Orissa High
\nCourt and  held that the Act does not apply to sale seeds on
\ngovernment land.  A declaration\t was made by this Court that
\nthe Act\t and the  Notification issued  under the  Act do not
\napply to  the forest  produce grown in government forest and
\nthat it\t was, therefore, open to the government to treat the
\ncontract dated 29th May, 1987 as rescinded. The judgments of
\nthis Court  is reported\t in (1987)  3 SCC 279. Thereafter on
\n29th May  1987 an  Ordinance  was  promulgated,\t called\t the
\nOrissa Forest  Produce (Control\t of  Trade)  (Amendment\t and
\nValidation) Ordinance,\t1987 and  it was given retrospective
\neffect as  a result  of which  the earlier  decision of this
\nCourt  became\tineffective.  The   petitioner,\t  therefore,
\nchallenged the\tvalidity of  the same on the ground that the
\nlegislature have  encroached upon the judicial power and set
\naside the  binding judgment  of this  Court. Negativing\t the
\nsaid contention this Court held:-\n<\/p>\n
     “The legislature  may, at any time,
\n     in exercise  of the  plenary  power
\n     conferred on it by Articles 245 and
\n     246 of  the Constitution  render  a
\n     judicial  decision\t ineffective  by
\n     enacting valid  law.  There  is  no
\n     prohibition  against  retrospective
\n     legislation.  The\t power\tof   the
\n     legislature   to\t pass\ta    low
\n     postulates the  power  to\tpass  it
\n     prospectively    as     well     as
\n     retrospectively. That of course, is
\n     subject\tto    the    legislative
\n     competence\t and  subject  to  other
\n     constitutional   limitations.   The
\n     rendering ineffective  of judgments
\n     or orders\tof competent  courts  by
\n     changing their basis by legislative
\n     enactment is  a well  known pattern
\n     of\t all   validating   acts.   Such
\n     validating\t   legislation\t   which
\n     removes\t the\t  causes      of
\n     ineffectiveness  of  invalidity  of
\n     action  or\t proceedings  cannot  be
\n     considered\t  as   encroachment   on
\n     judicial  power.  The  legislature,
\n     however,\tcannot\t  by   a    bare
\n     declaration, without more, directly
\n     overrule, reverse\tor set aside any
\n     judicial decision.”<\/p><\/blockquote>\n
     This case is to a great extent in pari materia with the
\ncase in\t hand where  this Court\t had earlier interpreted the
\nRules determining  the inter se seniority between the direct
\nrecruits  and\tpromotees   and\t  thereafter   the   Haryana
\nlegislatures have  enacted the\tAct giving  it retrospective
\neffect as  a result of which earlier decisions of this Court
\nin  Sehgal   (supra)  and   Chopra   (supra)   have   become
\nineffective. In\t BHUBANESHWAR SINGH AND ANOTHER vs. UNION OF
\nINDIA AND  OTHERS<\/a> 1994 6 SCC 77, a three Judge Bench of this
\nCourt held:\n<\/p>\n
     “it  is   well  settled   that  the
\n     Parliament and  State  Legislatures
\n     have plenary  powers of legislation
\n     on the subjects within their field.
\n     They  can\tlegislate  on  the  said
\n     subjects prospectively  as well  as
\n     retrospectively. If  the  intention
\n     of\t the   legislature  is\t clearly
\n     expressed\tthat   it  purports   to
\n     introduce\tthe  legislation  or  to
\n     amend  the\t  existing   legislation
\n     retrospectively,  then  subject  to
\n     the legislative  competence and the
\n     exercise being  not in violation of
\n     any  of   the  provisions\t of  the
\n     Constitution, such\t power cannot be
\n     questioned.”\n<\/p><\/blockquote>\n
     The Court also further held:-<\/p><\/blockquote>\n
     “that  the\t exercise  of  rendering
\n     ineffective the judgments or orders
\n     of competent Courts by changing the
\n     very basis by legislation is a well
\n     known    device\tof    validating
\n     legislation  and\tsuch  validating
\n     legislation which removes the cause
\n     of\t  the\tinvalidity   cannot   be
\n     considered to be an encroachment on
\n     judicial power.”<\/p><\/blockquote>\n
     In rendering  the aforesaid decision, this Court relied
\nupon heavily  on the  Constitution Bench  decision  of\tthis
\nCourt  in   Shri  P.C.\t Mills\tLtd.   Vs.  Broach   Borough
\nMunicipality (1969)  2 SCC  283. The  Court also relied upon
\nthe  decisions\t of  this  Court  in  West  Ramona  Electric
\nDistribution Company  Ltd. Vs.\tState of Madras (1963) 2 SCR
\n747, Udai  Ram Sharma and others etc. vs. Union of India and
\nothers (1968)  3 SCR  41, Krishna  Chandra Gangopadhyaya and
\nothers vs.  Union of  India and\t others<\/a> (1975) 2 SCC 302 and
\nHindustan Gum  and Chemicals  Ltd. Vs.\tState of Haryana and
\nother (1985) 4 SCC 124. In Comorin Match Industries (P) Ltd.
\nVs. State  of Tamil  Nadu (1996) 4 SCC 281 the same question
\nagain came  up for consideration. In this case an assessment
\norder under the Central Sales Tax was set aside on the basis
\nof the\tdecision of  Madras High Court in the case of Larsen
\nand Tubro. In Larsen and Turbo certain provisions of the Act
\nwere declared ultra vires. In an appeal against the judgment
\nof Madras  High\t Court\tthe  Supreme  Court  held  that\t the
\nprovisions of  the Central  Sales Tax  Act<\/a>  which  had\tbeen
\ndeclared ultra\tvires by  Madras  High\tCourt  were  validly
\nenacted. The  Central Sales  Tax Act<\/a>  was  amended  and\t the
\nAmending Act<\/a>  was given\t retrospective effect  declaring all
\nassessments made  upto 9.1.1969\t valid and binding. This was
\nchallenged on  the ground that it tantamounts to over riding
\na decision of this Court by Legislatures. Rejecting the said
\ncontention this Court held:\n<\/p>\n
     “this is  not a  case of  passing a
\n     legislation trying\t to nullify  the
\n     interpretation of\tlaw given in the
\n     judgment of a court of law. This is
\n     a case  of changing  the law itself
\n     on the  basis of which the judgment
\n     was  pronounced  holding  that  the
\n     assessment orders were erroneous in
\n     law.”<\/p><\/blockquote>\n
     In the case of Indian Aluminium (supra) to which two of
\nus Brother  Ramaswamy, J.  and Pattanaik,  J. were parties a
\nsimilar contention  had been  raised and after considering a
\nlarge number of authorities of this court and explaining the
\ndecision in  the case  of Madan\t Mohan Pathak  vs. Union  of
\nIndia<\/a> this Court negatived the contention and held that when
\nthe legislatures  enacting the\tAct has\t competence over the
\nsubject matter\tand when  the said  enactment is  consistent
\nwith the  provisions of Part III of the Constitution and the
\nearlier defects\t pointed out  by the Court have been removed
\nby the\tlegislatures then  the enactment is a valid piece of
\nlegislation and\t cannot be  struck down\t by the Court on the
\nground that  it\t encroaches  upon  the\tjudicial  sphere.  A
\nrelevant passage  from the  aforesaid decision\thas  already
\nbeen quoted in the earlier part of the judgment.\n<\/p>\n
     In MEERUT\tDEVELOPMENT AUTHORITY  AND OTHERS  ETC.\t vs.
\nSATBIR SINGH  AND OTHERS ETC. (1996) 11 SCC 462 on a similar
\ncontention being  raised this  Court negatived\tthe same and
\nheld:-\n<\/p>\n
     “It is  well settled  that when the
\n     Supreme Court  in exercise of power
\n     of judicial  review, has declared a
\n     particular statute\t to be\tinvalid,
\n     the legislature  has  no  power  to
\n     overrule the  judgment; however, it
\n     has the power to suitably amend the
\n     law   by\t use   of    appropriate
\n     phraseology  removing  the\t defects
\n     pointed out  by the  court\t and  by
\n     amending the  law\tconsistent  with
\n     the law  declared by  the Court  so
\n     that the defects which were pointed
\n     out  were\t never\ton  statute  for
\n     effective enforcement of the law.”<\/p><\/blockquote>\n
     A similar\tview has been expressed by this Court in the
\ncase of\t State of  Orissa and another vs. Gopal Chandra Rath
\nand others<\/a>  – (1995)  6 SCC  242. In  view of  the aforesaid
\nlegal  position\t when  the  impugned  Act  is  examined\t the
\nconclusion is  irresistible that the said Act cannot be said
\nto be  an Act  of usurpation  of the  judicial power  by the
\nHaryana Legislature,  but on  the other\t hand it  is a valid
\npiece of  legislation enacted  by the State Legislature over
\nwhich they had legislative competence under Entry 41 of List
\nII of  the  VIIth  Schedule  and  by  giving  the  enactment
\nretrospective effect  the earlier judgments of this Court in
\nSehgal (supra)\tand Chopra  (supra) have become ineffective.
\nBut since  this does not tantamount to a mere declaration of
\ninvalidity of  an earlier judgment and nor does it amount to
\nan encroachment\t by the legislature into the judicial sphere
\nthe Court  will not  justified in  holding the\tsame  to  be
\ninvalid. Needless  to mention  that  the  impugned  Act\t has
\nneither been  challenged  on  the  ground  of  the  lack  of
\nlegislative competence\tnor has\t it been established to have
\ncontravened any\t provisions of Part III of the Constitution.
\nConsequently Mr. Sachhar’s contention has to be rejected and
\nthe  Act  has  to  be  declared\t intra\tvires.\tNecessarily,
\ntherefore the  seniority list drawn up on different dates in
\naccordance with\t the earlier  Rules of\t1961 will have to be
\nannulled and  fresh seniority  list has\t to be\tdrawn up  in
\naccordance with\t the provisions of the Act since the Act has
\nbeen given  retrospective effect with effect from 1.11.1996.
\nIt may,\t however, be  reiterated that  any promotion already
\nmade on\t the  basis  of\t the  seniority\t list  drawn  up  in
\naccordance with\t the Recruitment  Rules of  1961 will not be
\naltered in any manner.\n<\/p>\n
     An ancillary question which arises for consideration is
\nwhether on account of the impugned Act any accrued or vested
\nright of  any of the direct recruits to the service is being
\ntaken away?  This  consideration  is  relevant\tinasmuch  as
\nthough the  legislature may  be empowered  to enact  law and
\ngive it\t retrospective effect  but such law cannot take away
\nany accrued  or vested\trights of  the employees.  Under the
\n1961 Rules  as interpreted  by this  Court in  the  case  of
\nSehgal and  Chopra,  a\tdirect\trecruit\t gets  the  year  of
\nallotment as  the year in which he is recruited as Assistant
\nExecutive Engineer  but so  far as  promotees are  concerned
\nthey become  a member  of the  service only  after they\t are
\nappointed substantively\t to a  cadre post  and the  quota of
\npromotees can’t\t exceed 50%  of the total number of posts in
\nthe service  excluding\tthe  posts  of\tAssistant  Executive
\nEngineers to  which direct  recruitments are  made. Inter se
\nseniority between direct recruits and promotees is regulated
\nby Rule\t 12(6) and  (7). As a necessary consequence a direct
\nrecruit when promoted as Executive Engineer from the post of
\nAssistant Executive  Engineer was getting seniority over the
\npromotee Executive  Engineers and  this situation  has\tbeen
\navoided by  the impugned  Act by  changing the definition of
\n“service” in  Rule 2(12) of the 1961 Rules, by providing the
\nquota for  promotees to\t exceed 50% in certain contingencies
\nlike non-availability  of direct recruits to man the post of
\nExecutive  Engineer   and  by\tchanging  the  criteria\t for
\ndetermination  of   inter  se  seniority  and  in  place  of
\ndetermination of  year of  allotment, by providing length of
\ncontinuous service  to the  post of Executive Engineer to be
\nthe  determining  factor.  Necessarily,\t therefore,  by\t the
\nimpugned Act  a direct\trecruit in  the\t rank  of  Executive
\nEngineer would come down in the gradation list than what was
\nassigns under  the Rules of 1961. The question, therefore is
\nthat, is the right of a competence under Entry 41 of List II
\nof  the\t  VIIth\t Schedule   and\t by   giving  the  enactment
\nretrospective effect  the earlier judgments of this Court in
\nSehgal (supra)\tand Chopra  (supra) have become ineffective.
\nBut since  this does not tantamount to a mere declaration of
\ninvalidity of  an earlier judgment and nor does it amount to
\nan encroachment\t by the legislature into the judicial sphere
\nthe Court  will not  be justified  in holding the same to be
\ninvalid. Needless  to mention  that  the  impugned  Act\t has
\nneither been  challenged  on  the  ground  of  the  lack  of
\nlegislative competence\tnor has\t it been established to have
\ncontravened any\t provisions of Part III of the Constitution.
\nConsequently Mr. Sachhar’s contention has to be rejected and
\nthe  Act  has  to  be  declared\t intra\tvires.\tNecessarily,
\ntherefore the  seniority list drawn up on different dates in
\naccordance with\t the earlier  Rules of\t1961 will have to be
\nannulled and  fresh seniority  list has\t to be\tdrawn up  in
\naccordance with\t the provisions of the Act since the Act has
\nbeen given  retrospective effect with effect from 1.11.1996.
\nIt may,\t however, be  reiterated that  any promotion already
\nmade on\t the  basis  of\t the  seniority\t list  drawn  up  in
\naccordance with\t Recruitment  Rules  of\t 1961  will  not  be
\naltered in any manner.\n<\/p>\n
     An ancillary question which arises for consideration is
\nwhether on account of the impugned Act any accrued or vested
\nright of  any of the direct recruits to the service is being
\ntaken away?  This  consideration  is  relevant\tinasmuch  as
\nthough the  legislature may  be empowered  to enact  law and
\ngive it\t retrospective effect  but such law cannot take away
\nany accrued  or vested\trights of  the employees.  Under the
\n1961 Rules  as interpreted  by this  Court in  the  case  of
\nSehgal and  Chopra,  a\tdirect\trecruit\t gets  the  year  of
\nallotment as  the year in which he is recruited as Assistant
\nExecutive Engineer  but so  far as  promotees are  concerned
\nthey become  a member  of the  service only  after they\t are
\nappointed substantively\t to a  cadre post  and the  quota of
\npromotees can’t\t exceed 50%  of the total number of posts in
\nthe service  excluding\tthe  posts  of\tAssistant  Executive
\nEngineers to  which direct  recruitments are  made. Inter se
\nseniority between direct recruits and promotees is regulated
\nby Rule\t 12(6) and  (7). As a necessary consequence a direct
\nrecruit when promoted as Executive Engineer from the post of
\nAssistant Executive  Engineer was getting seniority over the
\npromotee Executive  Engineers and  this situation  has\tbeen
\navoided by  the impugned  Act by  changing the definition of
\n“service” in  Rule 2(12) of the 1961 Rules, by providing the
\nquota for  promotees to\t exceed 50% in certain contingencies
\nlike non-availability  of direct recruits to man the post of
\nExecutive  Engineer   and  by\tchanging  the  criteria\t for
\ndetermination  of   inter  se  seniority  and  in  place  of
\ndetermination of  year of  allotment, by providing length of
\ncontinuous service  to the  post of Executive Engineer to be
\nthe  determining  factor.  Necessarily,\t therefore,  by\t the
\nimpugned Act  a direct\trecruit in  the\t rank  of  Executive
\nEngineer would come down in the gradation list than what was
\nassigns under  the Rules of 1961. The question, therefore is
\nthat, is  the  right  of  a  government\t servant  to  get  a
\nparticular position  in the  gradation list  is a  vested or
\naccrued right?\tThe answer to this question has to be in the
\nnegative. As  early as in 1962 this Court in the case of THE
\nHIGH COURT  OF CALCUTTA\t vs. AMAL KUMAR ROY<\/a>, (1963) 1 S.C.R.
\n437, in\t the  Constitution  Bench  considered  the  question
\nwhether losing some places in the seniority list amounted to
\nreduction in rank, and came to hold:\n<\/p>\n
     “In the context of Judicial Service
\n     of West Bengal, “reduction in rank”
\n     would imply  that a  person who  is
\n     already  holding\tthe  post  of  a
\n     Subordinate Judge\thas been reduced
\n     to the  position of  a Munsif,  the
\n     rank of  a Subordinate  Judge being
\n     higher than  that of  a Munsif. But
\n     Subordinate Judge in the same cadre
\n     hold the  same  rank,  though  they
\n     have  to  be  listed  in  order  of
\n     seniority\tin   the   Civil   List.<\/p><\/blockquote>\n
     Therefore, losing\tsome  places  in
\n     the   seniority\tlist   is    not
\n     tantamount to  reduction  in  rank.
\n     Hence, it\tmust be\t held  that  the
\n     provisions of Article 311(2)<\/a> of the
\n     Constitution are  not attracted  to
\n     this case.”<\/p><\/blockquote>\n
     To the  said effect  the judgment\tof this Court in the
\ncase of\t THE STATE OF PUNJAB vs. KISHAN DAS<\/a>, (1971) 3 S.C.R.
\n389, wherein this Court observed:\n<\/p>\n
     “an  order\t  forfeiting  the   past
\n     service   which\thas   earned   a
\n     Government\t servant  increments  in
\n     the  post\t or   rank   he\t  holds,
\n     howsoever adverse\tit  is\tto  him,
\n     affecting his  seniority within the
\n     rank to  which he\tbelongs\t or  his
\n     future chances  of\t promotion  does
\n     not attract  Article 311(2)<\/a>  of the
\n     Constitution  since   it\tis   not
\n     covered by the expression reduction
\n     in rank.”<\/p><\/blockquote>\n
     Thus to  have a  particular position  in the  seniority
\nlist within  a cadre  can neither  be said  to be accrued or
\nvested right  of a Government servant and losing some places
\nin the\tseniority list\twithin the  cadre does not amount to
\nreduction  in\trank  even  though  the\t future\t chances  of
\npromotion gets\tdelayed thereby.  It was urged by Mr. Sachar
\nand Mr.\t Mahabir Singh\tappearing for the direction recruits
\nthat the  effect of  re-determination of  the  seniority  in
\naccordance with\t the provisions\t of the\t Act is not only the
\ndirect recruits\t lose a\t few places of seniority in the rank
\nof Executive  Engineer but their future chances of promotion
\nare greatly jeopardise and that right having been taken away
\nthe Act\t must be  held to  be invalid.\tIt is  difficult  to
\naccept\tthis   contention  since  chances  of  promotion  of
\nGovernment servant  are not  a condition  of service. In the
\ncase of\t STATE OF  MAHARASHTRA AND  ANOTHER vs.\t CHANDRAKANT
\nANANT KULKARNI\tAND OTHERS<\/a>,  (1981) 4  S.C.C. 130 this Court
\nheld:\n<\/p>\n
     “Mere chances  of promotion are not
\n     conditions of services and the fact
\n     that there\t was  reduction\t in  the
\n     chances  of   promotion   did   not
\n     tantamount\t to   a\t change\t in  the
\n     conditions of  service. A\tright to
\n     be considered  for promotion  is  a
\n     term of  service, but  mere chances
\n     of promotion are not”.<\/p><\/blockquote>\n
     To the said effect a judgment of this Court in the case
\nof K.  JAGADEESAN vs.  UNION OF\t INDIA AND OTHERS<\/a> , (1990) 2
\nS.C.C. 228, where in this Court held:\n<\/p>\n
     “the  only\t  effect  is   that  his
\n     chances of\t promotion or  his right
\n     to be  considered for  promotion to
\n     the  higher   post\t  is   adversely
\n     affected. This  cannot be\tregarded
\n     as retrospective effect being given
\n     to\t the   amendment  of  the  rules
\n     carried   out   by\t  the\timpugned
\n     notification and  the challenge  to
\n     the  said\t notification  on   that
\n     ground must fail”.\n<\/p><\/blockquote>\n
     Again in  the case of UNION OF INDIA AND OTHER vs. S.L<\/a>.\n<\/p><\/blockquote>\n
DUTTA AND ANOTHERS, (1991) 1 S.C.C. 505, this Court held:\n<\/p>\n
     “in our  opinion, what was affected
\n     by the change of policy were merely
\n     the chances of promotion of the Air
\n     Vice-Marshals  in\t the  Navigation
\n     Stream. As\t far as the posts of Air
\n     Marshals  open  to\t the  Air  Vice-<\/p><\/blockquote>\n
     Marshals in  the said  stream  were
\n     concerned,\t   their     right    or
\n     eligibility to  be\t considered  for
\n     promotion still remained and hence,
\n     there  was\t  no  change   in  their
\n     conditions of service”.<\/p><\/blockquote>\n
     In ZOHRABI\t vs. ARJUNA AND OTHERS<\/a>, (1980) 2 S.C.C. 203,
\nthis Court observed that
\n     “a mere  right to take advantage of
\n     the provisions  of an Act is not an
\n     accrued right”.\n<\/p>\n
     The aforesaid  observation would  equally apply  to the
\ncase in\t hand since  the only argument advanced on behalf of
\nthe direct  recruits was that the advantage which they we re
\nreceiving under the 1961 Rules to get their seniority in the
\nrank of\t Executive Engineer  is\t being\ttaken  away  by\t the
\nimpugned Act.  Since the  said right is not an accrued right
\nthe legislatures  were well  within their  power to make the
\nlaw.\n<\/p>\n
     In the  aforesaid premises,  it must  be held  that the
\ndirect recruits\t did not  have a  vested right nor any right
\nhad accrued  in their  favour in  the matter  of  getting  a
\nparticular position  in\t the  seniority\t list  of  Executive
\nEngineers under\t the pre-amended Rules which is said to have
\nbeen taken  away by  the Act since such a right is neither a
\nvested right  of an  employee nor  can it  be said  to be an
\naccrued right.\tThus there  is no bar for the legislature to
\namend the  law in consequence of which the inter se position
\nin  rank   of  Executive   Engineer   might   get   altered.
\nconsequently, we  see no  invalidity in the enactment of the
\nHaryana\t Service   of  Engineers,   Class  I,  Public  Works
\nDepartment  (Building\tand  Roads  Branch)  (Public  Health
\nBranch) and  (Irrigation  Branch)  Respectively\t Act,  1995.
\nThough the  Act in  question is a valid piece of legislation
\nbut it is difficult to sustain Section 25<\/a> of the Act in toto
\nsince a\t plain reading\tof the\tsaid provision does not make
\nout any meaning. Section 25<\/a> of the Act is quoted hereinbelow
\nin extenso:-\n<\/p>\n
     “25.   The\t  Haryana   Service   of
\n     Engineers\tClass  I,  Public  Works
\n     Department\t (Buildings   and  Roads
\n     Branch), (Public Health Branch) and
\n     (Irrigation  Branch)   Respectively
\n     Ordinance, 1995  (Haryana Ordinance
\n     No. 6 of 1995), is hereby repealed.
\n     The Punjab\t Service  of  Engineers,
\n     Class-I,  Public  Works  Department
\n     (Buildings and Roads Branch) Rules,
\n     1960,   the   Punjab   Service   of
\n     Engineers, Class  I,  Public  Works
\n     Department (Public\t Health\t Branch)
\n     Rules, 1961,  the Punjab Service of
\n     Engineers\tClass  I,  Public  Works
\n     Department\t  (Irrigation\t Branch)
\n     Rules, 1964,  in their  application
\n     to the  State of  Haryana, are also
\n     hereby repealed  to the extent that
\n     these rules shall continue to apply
\n     to the  person who\t were members of
\n     the  Service   before  1st\t day  of
\n     November, 1966;\n<\/p><\/blockquote>\n
     Provided that such repeal shall not
\n     effect–\n<\/p><\/blockquote>\n
     (a)  any\tpenalty\t or   punishment
\n     imposed as a result of disciplinary
\n     proceedings;\n<\/p><\/blockquote>\n
     (b)  any\tdisciplinary  action  or
\n     proceedings  initiated  or\t pending
\n     under the rules so repealed;\n<\/p><\/blockquote>\n
     (c)     any      relaxation      in
\n     qualifications   granted\tto   any
\n     member of\tthe  service  under  the
\n     rules so repealed;\n<\/p><\/blockquote>\n
     (d) the  benefits\taccrued\t to  the
\n     persons  who   have  retired   from
\n     service during  a period commencing
\n     from the  1st day of November, 1966
\n     and  ending   with\t the   date   of
\n     promulgation of the Haryana Service
\n     of Engineers, Class I, Public Works
\n     Department\t (Buildings   and  Roads
\n     Branch), (Public Health Branch) and
\n     (Irrigation  Branch)   respectively
\n     Ordinance, 1995.\n<\/p><\/blockquote>\n
     and   the\t  Punjab   Service    of
\n     Engineers, Class  I,  Public  Works
\n     Department\t (Building   and   Roads
\n     Branch)  Rules,  1960,  the  Punjab
\n     Service  of   Engineers,  Class  I,
\n     Public  Works   Department\t (Punjab
\n     Health Branch)  Rules 1961\t and the
\n     Punjab Service  of Engineers, Class
\n     I,\t   Public    Works    Department
\n     (Irrigation  Branch)  Rules,  1964,
\n     shall continue to be in force as if
\n     the same had not been repealed.”<\/p><\/blockquote>\n
     The aforesaid  provision  repeals\tthe  previous  Rules
\nframed under  proviso to  Article 309<\/a> of the Constitution as
\nwell as\t repealed the  Ordinance of  1995. It also saves the
\naction taken in respect of matters enumerated in Clause a to
\nd. It  further purports\t to indicate  that the earlier Rules
\nwould apply  to the  person who\t were members of the service
\nbefore 1st day of November 1996 though on a plain reading of
\nthe main  part of  Section 25<\/a>  really does  not\t convey\t the
\naforesaid meaning.  The learned\t counsel appearing  for\t the
\nState of  Haryana could\t not indicate as to what is the true
\nmeaning of  Section 25<\/a>.\t Dr. Rajiv  Dhawan,  learned  senior
\ncounsel, however,  in course of his arguments contended that
\nthough on a plain grammatical meaning being given to Section
\n25<\/a> is  not susceptible of representing the true intention of
\nthe Legislature and in fact it conveys absolutely no meaning
\nbu the\tCourt  should  fill  up\t the  gap  by  applying\t the
\nprinciple of  causes   and provide  the work “except” in the
\nfirst part  of Section\t25<\/a> after  the worked “to the extend”
\nand such  filling up being done the provisions of Section 25<\/a>
\nwould convey  the true\tintention of the legislature. Though
\non principles  Mr. Dhawan,  learned senior  counsel  may  be
\nright in this submission that Courts can apply the principle
\nof causes  omissus and\tfill the gap by adding certain words
\nwhen the Statute does not convey the correct meaning. But it
\nthe case  in hand  we do  not think  it appropriate to apply
\nthat principle, inasmuch as the Act itself having been given
\nretrospective effect with effect from 1st November, 1966 the
\ndate on which the State of Haryana came into existence there
\nis no  rational to  apply the  pre existing  rules to  those
\nemployees who  were members  of the service before that date
\neven after  the pre-existing  rule is  being repealed by the
\nAct. In\t this view of the matter we hold that the expression
\n`to the\t extent that  these rules shall continue to apply to
\nthe persons  who were  members of the Service before 1st day
\nof November,  1966′ is\tinvalid and  is\t accordingly  struck
\ndown. Remaining part of Section 25<\/a> as well as the proviso to
\nthe said Section will, however, remain operative.\n<\/p>\n
     Though in\tview of our conclusion that the Act is intro
\nvirus, the  inter se seniority of the concerned officers are
\nrequired to  be re-determined  in accordance  with  the\t Act
\nitself, subject however, to the restrictions that promotions
\nalready made  will not be annulled but since the judgment of
\nthe Punjab  and Haryana\t High Court  in favour of the direct
\nrecruit\t B.D.  Sardana\twas  rendered  by  interpreting\t the
\nRecruitment Rules  of 1961  and\t relying  upon\tthe  earlier
\ndecisions of  this Court  in Sehgal  and Chopra\t (supra)  it
\nwould be  appropriate for  us to  also deal  with  the\tsaid
\njudgments since\t an appeal has been carried to this Court by
\nthe promotees  in Civil\t Appeal No.  422 of  1993. After the
\njudgment of  this Court in Sehgal (supra) and Chopra (supra)
\nwhen the  State Government drew up the seniority list in the
\nrank of\t Executive Engineers  on 6.4.92 Shri Sardana who had
\nbeen appointed\tdirectly as  an Assistant Executive Engineer
\non 7.12.1977  challenged the  said seniority  list  claiming
\ntherein that  initially 10  officers having formed the cadre
\nwhen haryana  became a\tseparate State and all of them being
\npromotees and  as such\tthe quota of promotees was in excess
\nof  the\t 50%  which  is\t the  permissible  quota  under\t the
\nRecruitment Rules,  he should  be given\t the  position\tjust
\nafter  10   persons  who   constituted\tthe   initial  cadre
\nirrespective of the fact that he was recruited on 7.12.1977.
\nThe further  contention before\tthe High  Court was that the
\nState Government  was not entitled to re-determine the cadre
\nstrength each  year after  the judgment\t of  this  Court  in
\nSehgal (supra)\tand Chopra  (supra). The  High Court  by the
\nimpugned judgment  appears to  have been persuaded to accept
\nboth these  contentions and  the promotees,  therefore, have
\nassailed the  legality of the same. Mr. D.D. Thakur, learned
\nsenior counsel\tappearing for these promotees as well as Dr.
\nRajiv Dhawan,  learned senior  counsel appearing for some of
\nthe promotees urged that the High Court was in error to hold
\nthat the  State Government  was not entitled to re-determine
\nthe cadre  strength each  year retrospectively subsequent to
\nthe judgment  of this  Court in\t Sehgal (supra)\t and  Chopra
\n(supra). It  was contended  that 10  persons who constituted
\nthe initial  cadre when\t the State of Haryana was formed and
\nall those  10 persons  having been allocated to Haryana from
\nthe erstwhile State of Punjab on the basis of their domicile
\nit would be reasonable to construe and apply the Recruitment
\nRules which  was in  force in  Punjab  and  which  had\tbeen
\nadopted by Haryana by fictionally holding the recruitment of
\n10 persons to be the initial recruitment to the cadre and by
\nfictionally holding  that the  Recruitment Rules  which\t was
\nadopted by Haryana was in fact came into existence so far as
\nthe State of Haryana is concerned on 1.11.1966. According to
\nthe learned  counsel unless such a construction is given the
\nposition will  be very\tanomalous and  direct recruits\tlike
\nShri Sardana  will be  senior  to  promotees  who  had\tbeen
\npromoted even  in the  year 1968 or 1969 even though Sardana
\nwas recruited  as an  Assistant Executive  Engineer only  on
\n7.12.1977. According  to the  learned counsel  the  Rule  in
\nquestion cannot be construed in such a manner to bring about
\ngross inequities  and, therefore,  a reasonable construction
\nshould be  made. Mr. Sachhar, learned senior counsel and Mr.
\nMahabir Singh,\tlearned counsel\t appearing  for\t the  direct
\nrecruits and  Mr. Sardana, appearing in person, on the other
\nhand, submitted\t that it  was not  necessary for  the  State
\nGovernment to  redetermine the\tcadre  strength\t every\tyear
\nretrospectively since  the judgment  of this Court in Sehgal
\n(supra) and  Chopra (supra) merely authorises the Government
\nto determine  the cadre\t strength if it has not already been
\ndone. According to the learned counsel such re-determination
\nof cadre  strength every  year has  been mala fidely done by
\nincreasing the\tstrength of  the cadre\tso as to accommodate
\nthe promotees  within 50% quota available for them under the
\nRecruitment Rules  and, therefore, such redetermination must
\nbe struck  down and  the High  Court has rightly struck down
\nthe same.  It was  also contended  on their  behalf that the
\ninitial cadre  having been  constituted on 1.11.1966 and the
\nentire\tcadre\tbeing  filled\tup  by\tapplication  of\t the
\nprovisions of  the Recruitment\tRules, 5 of them were beyond
\nthe  permissible    limit  of  50%  quota  in  the  service.
\nConsequently until the cadre strength is so maintained so as
\nto bring  down the  ratio of 50% so far as the promotees are
\nconcerned any  direct recruit  may  during  the\t intervening
\nperiod must  be held  to be  senior to\tsuch  promotees\t and
\ntherefore, the\tHigh Court  was fully  justified in  holding
\nthat  Mr.   Sardana  should   rank  below   10\tpersons\t who
\nconstituted the\t initial cadre\tirrespective of the hardship
\nthat may  be caused  to\t the  promotees.  According  to\t the
\nlearned counsel\t while interpreting  a particular  rule\t the
\nCourt is  not required\tto look\t into the hardship which the
\ninterpretation\tmay\tcause  so  long\t as  the  rules\t are
\nunambiguous. It was ultimately contended that the High Court
\nhas rightly  struck down  the seniority\t list that  has been
\ndrawnup on  6.4.1992 as\t well as  the determination of cadre
\nstrength made  by the state government and, further the list
\nthat was  drawn up  on 15.4.1997,  while  the  appeals\twere
\npending\t in   this  Court  is  the  correct  gradation\tlist
\nreflecting he  inter se seniority of the direct recruits and
\npromotees correctly in accordance with the interpretation of
\nthe rules  given by this Court in the case of Sehgal (supra)
\nand Chopra  (supra). The rival submissions require a careful
\nexamination of\tthe relevant   provisions of Rule of 1961 as
\nwell as\t in the light of the earlier decisions of this Court
\nin Sehgal  (supra) and\tChopra (supra). Before examining the
\nsame it\t may be stated that the Division Bench of the Punjab
\nand Haryana  High Court in the impugned judgment came to the
\nconclusion that the State Government was not entitled to re-
\ndetermine the  cadre strength  retrospectively and  by\tsuch
\naction of  the State  Government  by  increasing  the  cadre
\nstrength promotees  have  been\tgiven  undue  advantage\t and
\ndirect recruits\t like B.D.  Sardana have  lost their  vested
\nright and,  therefore, such  an order cannot be sustained in
\nlaw. The High Court also further came to the conclusion that
\non carving  of State  of Haryana  when the initial cadre was
\nfixed at 10 and 10 persons brought over from erstwhile State
\nof Punjab  the\tRecruitment  Rules  of\t1961  must  be\tmade
\napplicable to  them and\t consequently the quota of promotees
\ncannot exceed  50%. In this view of the matter since all the
\n10 persons  who constituted the cadre in 1966 were promotees
\nand thus  far beyond  the permissible quota of 50% the first
\ndirect recruit\tin the cadre Shri Sardana must be given 11th
\nposition in the seniority list and he would be senior to all
\nthose  promotees   who\twere   promoted\t after\tthe  initial
\nformation  of  the  cadre  irrespective\t of  their  date  of
\npromotion as  an Executive  Engineer and irrespective of the
\ndate on\t which Mr.  Sardana was\t appointed  directly  as  an
\nAssistant Executive  Engineer  on  7.12.1977.  As  has\tbeen
\nstated earlier,\t this Court in A.N. Sehgal’s case (supra) on
\nconsidering the recruitment rules decided the principles for
\ndetermination of  inter\t se  seniority\tbetween\t the  direct
\nrecruits and the promotees and left the matter for the State
\nGovernment to  re-determine the\t same by applying the law as
\ndeclared by this Court. While interpreting the provisions of
\nthe Rules  the Court  came to  hold that  a promotee  within
\nquota under  Rule 5  (2) gets his seniority form the initial
\ndate  of  his  promotion  and  the  year  of  allotment,  as
\ncontemplated in\t Rule 12(6)  shall be  the next\t below\t`the
\njuniormost officer  in the  service whether  officiating  or
\nconfirmed  as\tExecutive  Engineer   before  the   former’s
\nappointment’ counting  the entire officiating period towards
\nseniority, unless  there is break in the service or from the
\ndate  of   later  promotion.  Such  promotee,  by  necessary
\nimplication, would  normally become  senior  to\t the  direct
\nrecruit promoted  later. Combined operation of sub-rules (3)
\nto (5)\tof Rule\t 12 makes the direct recruit a member of the
\nservice of  Executive Engineer\tform the  date\tof  year  of
\nallotment as  an Assistant  Executive  Engineer.  The  Court
\nfurther held  that necessary conclusion would, therefore, be
\nthat the  direct recruits  shall get  seniority with  effect
\nfrom the  date of  the year  of the  allotment as  Assistant
\nExecutive Engineer  which  is  not  alterable.\tWhereas\t the
\npromotee would\tget his\t seniority with effect from the date
\nof the\tavailability of\t the posts  within 50%\tquota of the
\npromotees and  the year\t of allotment  is variable  and\t the
\nseniority  shall  be  reckoned\taccordingly.  In  concluding
\nparagraph of  the judgment the Court directed the Government
\nof Haryana  to determine the cadre posts regularly form time
\nto time\t including the\tpost created  due to  exigencies  of
\nservice in  terms of  Rule 3(2)\t read with  Appendix `A’ and
\nallot the  posts in  each year\tof allotment as contemplated
\nunder Rule  12 read  with  Rule\t 5(2)(a)  and  issue  orders
\nappointing substantively  to the respective posts within the
\nquota and  determine the  inter\t se  seniority\tbetween\t the
\npromotees and  direct recruits in the respective quota cadre
\nposts of  Executive Engineers  etc. in\tSehgal\t(supra)\t the
\nCourt was  dealing with the service of Engineers Class I PWD
\n(Roads and Building) Branch. Similarly in Chopra (supra) the
\nCourt dealt  with the  service of  Engineers (Public  Health
\nBranch), the rules of Public Health Branch being the same as
\nthe rules  in  Roads  and  Building  Branch.  In  concluding
\nparagraph of  the said judgment though an affidavit had been
\nfiled by one of the appellants that the State Government has
\ndetermined the\tcadre strength but this Court declined to go
\ninto the  question and\tleft it\t open to  the Government  of
\ndetermine the  seniority after\tgiving\topportunity  to\t all
\nparties in  the light  of the  law laid down in the case. In
\nChopra’s case  (supra) in  paragraph 10 of the judgment this
\nCourt had  observed that  under Rule 3(2) read with Appendix
\n`A’ the\t State Government is enjoined to determine the cadre
\npost from time to time and during the first 5 years on first
\nday of\tJanuary every  year and\t later from time to time and
\ndivide the posts as per the ratio f the available cadre post
\nto the\tpromotees and  the direct  recruits and\t shall\tmake
\nappointment in a substantive capacity.\n<\/p>\n
     In course\tof argument  Mr. K.T.S Tulsi, learned senior
\ncounsel appearing  for the  State of Haryana had pointed out
\nthat the  State Government had taken steps for making direct
\nrecruitment to\tthe cadre  but as  no competent\t people were
\navailable, per\tforce the cadre was to be managed by filling
\nup the\tposts by  promotees and\t it was\t done in  the public
\ninterest. The  learned counsel\thad urged  that there  is no
\njustification in  the arguments\t advanced by the counsel for
\ndirect recruits\t that the promotees were in fact given undue
\nfavour. We  are, however,  really not  concerned  with\tthis
\nsubmission while interpreting the relevant provisions of the
\nRules and  the Rules having been framed under the proviso to
\nArticle\t 309<\/a>   of  the\tConstitution  the  same\t has  to  be
\nscrupulously followed.\tBut at\tthe outset  on going through
\nthe two\t earlier decisions  of this  Court in Sehgal (supra)
\nand Chopra  (supra) there should be no hesitation to come to
\nthe conclusion that the High Court was in error to hold that
\nthe State  Government was  not entitled\t to re-determine the
\ncadre strength\tretrospectively\t every\tyear  and  such\t re-
\ndetermination is  invalid and inoperative. On the other hand
\nsince the  cadre strength  had not been determined regularly
\nthough it  was enjoined\t upon the  State Government to do so
\nthis Court  had called\tupon the  State\t Government  to\t re-
\ndetermine the  cadre strength  and thereafter  determine the
\ninter se  seniority of\tthe direct recruits and promotees in
\nterms of  Rule 12  of Recruitment  Rules bearing in mind the
\nlaw laid  down by  this\t Court\tinterpreting  the  different
\nprovisions of  the Rules.  The said  conclusion of  the High
\nCourt, therefore, must be quashed.\n<\/p>\n
     Now coming\t to the\t question  as  to  how\tthe  initial
\nappointees to  the service are to be dealt with since in the
\ntwo earlier  cases this\t Court\thad  never  considered\tthis
\nquestion, the question assumes a greater significance.\n<\/p>\n
     The Rules\tframed under  the proviso  to Article 309<\/a> of
\nthe Constitution came into force w.e.f. the  June, 1961,
\nthe date  on which  the Rule  was published  in the official
\nGazet. Under  sub-rule (1)  of Rule 3, it is stipulated that
\nthe service  shall comprise  of\t such  number  of  posts  of
\nAssistant   Executive\t Engineers,   Executive\t  Engineers,
\nSuperintending Engineers  and  Chief  Engineers\t as  may  be
\nspecified by  Government from  time to\ttime. Under sub-rule
\n(2) of Rule 3 the strength of the service for the first five
\nyears after  the common\t cement\t of  these  rules  shall  be
\ndetermined each\t year on  the 1st  day of  January  or\tsoon
\nthereafter as may be practicable according to the provisions
\nof Appendix A and the strength so determined shall remain in
\nforce till  it is revised. Sub-rule (2) of Rule 5 stipulates
\nthat the  recruitment to  he service  shall be\tso regulated
\nthat the  number of  posts filled up by promotion form Class
\nII Service  shall not exceed fifty per cent of the number of
\nposts in  the Service,\texcluding  the\tposts  of  Assistant
\nExecutive Engineers.  Proviso to  sub-rule (2) provides that
\ntill  adequate\t number\t of  Assistant\tExecutive  Engineers
\neligible and  considered fit for promotion are not available
\nthe actual  percentage of  officers promoted  form Class  II
\nservice may  be larger\tthan 50%.  Sub-rule (3)\t of  Rule  5
\nspeaks of  a fictional\tsituation namely  in the  service as
\nconstituted immediately\t after\tthe  commencement  of  these
\nrules, it  shall be  assumed  that  the\t number\t of  persons
\nrecruited by promotion form Class II Service shall be 50% of
\nthe senior posts in the Service and future recruitment shall
\nbe based on this assumption. Sub-rules (1) and (2) of Rule 3
\nand sub-rules  (2) and\t(3) of\tRule 5\tof 1961 Rules may be
\nextracted herein below in extenso :\n<\/p>\n
     “3. Strength  of Service  : (1) the
\n     Service  shall   comprise\tof  such
\n     number  of\t  posts\t  of   Assistant
\n     Executive\t Engineers,    Executive
\n     Engineers and  Chief  Engineers  as
\n     may be specified by Government from
\n     time to time.\n<\/p><\/blockquote>\n
     (2)  Without   prejudice\tto   the
\n     generality\t of  the  provisions  of
\n     sub-rule (1)  the strength\t of  the
\n     Service for  the first  five  years
\n     after  the\t commencement  of  these
\n     rules shall be determined each year
\n     on the  1st day  of January  or  as
\n     soon   thereafter\t  as   may    be
\n     practicable   according\tto   the
\n     provisions\t of   Appendix\tA.   The
\n     strength so determined shall remain
\n     in force till it is revised.\n<\/p><\/blockquote>\n
     5. Recruitment  to\t service  :  (2)
\n     Recruitment to the service shall be
\n     so regulated  that\t the  number  of
\n     posts  filled   by\t promotion  from
\n     Class II  Service shall  not exceed
\n     fifty per\tcent of\t the  number  of
\n     posts in the Service, excluding the
\n     posts   of\t   Assistant   Executive
\n     Engineers;<\/p><\/blockquote>\n
     Provided that  till such time as an
\n     adequate\tnumber\t  of   Assistant
\n     Executive\t Engineers,    who    ar
\n     eligible  and  considered\tfit  for
\n     promotion,\t  are\tavailable,   the
\n     actual   percentage   of\tOfficers
\n     promoted from  Class II Service may
\n     be larger than fifty per cent.
\n     (3)  In the  Service as constituted
\n     immediately after\tthe commencement
\n     of these rules, it shall be assumed
\n     that the  number  of  recruited  by
\n     promotion from  Class II Service is
\n     fifty per\tcent of the senior posts
\n     in\t  the\t Service   and\t further
\n     recruitment shall\tbe based on this
\n     assumption.”<\/p><\/blockquote>\n
     From a combined reading of the aforesaid provisions the
\nfollowing situation emerges :-\n<\/p>\n
(a)  That the  Rules came  into force  w.e.f. 9th  of  June,
\n1961 but the service existed even prior to the said date;\n<\/p>\n
(b)  On constitution  of the  service immediately  after the
\ncommencement of\t the Rules by operation of a fictions it was
\nassumed that  number of\t persons recruited by promotion from
\nClass II  service is  50% of the senior post in the service.
\nThis fictional\tsituation emerges in view of sub-rule (3) of
\nRule 5,\t so that,  the future recruitment to the service can
\nbe regulated appropriately under sub-rule (2) of Rule 5; and\n<\/p>\n
(c)  A duty  was  enjoined  upon  the  State  Government  to
\ndetermine the  strength of  the service each year on the 1st
\nday of\tJanuary or soon thereafter as may be practicable for
\nthe first five years after the commencement of the Rules and
\nthe strength  thus determined  year to\tyear would remain in
\nforce till it is revised.\n<\/p>\n
     When recruitments were being made without determination
\nof the\tcadre strength\tand statutory  rules came into force
\nfor the\t first time  on 9th  of June, 1961 the Rules  cast a
\nduty on\t the Government to determine the cadre strength each
\nyear and  thereafter make  recruitment in  terms of  Rule  5
\nregulating the\tmanner of filling up the post in the service
\nsubject to  the provisions contained in sub-rule (2) of Rule\n<\/p>\n
5. Rule\t 12 is\trules for  determination of  seniority. This
\nRule has  already been\tinterpreted by\tthis Court in Sehgal
\nand Chopra  indicating the manner in which the seniority bas
\nto be  determined inter\t se between the promotees and direct
\nrecruits. When\tState of  Haryana came\tinto  existence\t and
\npersons were  serving in  the erstwhile State of Punjab were
\ndrafted into  State of\tHaryana and  constituted the initial
\ncadre strength\tof the\tservice in  the State of Haryana and
\nthe Government\tof Haryana  adopted the Punjab Rules of 1961
\nfor determining\t the service  conditions of the employees it
\nwould be  reasonable to\t hold that  so far  as the  State of
\nHaryana is  concerned the  Recruitment Rules came into force
\non 1.11.1966  and since\t the  persons  who  constituted\t the
\nservice came  from erstwhile  State of Punjab depending upon
\ntheir domicile\tit would  be further  reasonable to construe
\nthat they  constituted the service soon after the rules were
\nadopted by  the State  of Haryana  and thereafter  Rule 5(3)
\nshould be  attracted in\t respect of  those 10  officers\t who
\nconstituted the\t service  and  by  such\t application,  by  a
\nfiction 50%  should be\ttreated to  be promotees  and on  so
\ntreating  them\t further  recruitment  to  the\tservice\t was
\nrequired to  be regulated in accordance with sub-rule (2) of
\nRule 5\tand it\tis then\t the inter  se seniority  has to  be
\ndetermined under  Rule 12. In other words, out of 10 persons
\nwho were brought over form the erstwhile State of Punjab and
\nconstituted the\t service in  the State\tof Haryana 5 will be
\nassumed to  have been  recruited by  promotion from Class II
\nservice by  application of  sub-rule (2)  of Rule  5 even if
\nfactually  all\t the  10  were\tpromotees  while  they\twere
\nrecruited under\t the Punjab  Rules. Since  the initial cadre
\nstrength was  only 10  in the year 1966 and since under Rule
\n5(2) the  promotees cannot exceed 50% of the total number of
\nposts in the services, the Recruitment Rules by fiction held
\n50%   of the  persons constituted  the\tservice\t immediately
\nafter  the  commencement  of  the  Rules  to  be  promotees.
\nThereafter the\tState Government was duty bound to determine
\nthe cadre strength every year in the first five years as per
\nsub-rule (2)  of Rule  3 and in fact this direction had been
\ngiven in  the earlier  judgments in  the case  of Sehgal and
\nChopra and after such determination of the cadre strength if
\nin a  particular year  it is  found that  the promotees have
\nusurped the quota of direct recruit then such promote cannot
\nbe held\t to be\tsenior to the direct recruit notwithstanding
\ntheir  earlier\t recruitment  to   the\tservice.   If  these
\nprinciples are\tborne in  mind then the gradation list which
\nhad been  prepared by  the State  Government on 6.4.1992 was
\npossibly the  correct gradation\t list and the High Court was
\nin error  to quash  the said  gradation list on a conclusion
\nthat the  earlier direction  of this  Court  in\t Sehgal\t and
\nChopra has  not been  followed. Obviously,  the\t High  Court
\nmisunderstood the  directions of  this\tCourt  in  the\tcase
\nSehgal and  Chopra. We\tare however, not going o examine the
\nsaid gradation\tlist that  was prepared\t on 6.4.1992  or any
\nother gradation\t list which  had been  prepared subsequently
\nduring the  pendency of these appeals, since in our view the
\nAct having  been come into force and the Act have been given
\nretrospective effect the seniority has to be drawn up afresh
\nin accordance with the provisions of the Act.\n<\/p>\n
     So far  as the  rules dealing with Irrigation Branch is
\nconcerned, the said rules namely Punjab Service of Engineers
\n(Irrigation Branch) Class I Service Rules, 1964 has not been
\nconsidered earlier  by this  Court at any point of time. One
\nShri M.L.  Gupta was  appointed to  the\t post  of  Assistant
\nExecutive  Engineer   as  a  direct  recruit  on  27.8.1971,
\npursuant to  he result\tof a competitive examination held by
\nthe Haryana  Public Service  Commission in  December,  1970.
\nSaid Shri  Gupta was  promoted\tto  the\t post  of  Executive
\nEngineer on  17.9.1976. He  made representation to the State
\nGovernment to  fix up  his seniority  in accordance with the
\nservice\t rules\tbut  as\t the  said  representation  was\t not
\ndisposed of for more than three years he approached the High
\nCourt of  Punjab and  Haryana by  filing C.W.P.\t NO. 4335 of
\n1984. That petition was disposed of by the High Court on the
\nundertaking given  by the  State that  the seniority will be
\nfixed up soon. The said undertaking not having been complied
\nwith, said  Shri Gupta\tapproached the High Court in January
\n1986 by\t filling Contempt  Petition. In\t September, 1986 the
\nState Government  fixed the  inter se seniority of said Shri
\nGupta and other members of the service ad Gupta was shown at
\nserial no. 72. Two promotees had been shown at serial no. 74
\nand  75.   Those  two\tpromotees  filed   a  writ  petition
\nchallenging the\t fixation of  inter se seniority between the
\ndirect recruits\t and promotees\tand High Court of Punjab and
\nHaryana by its judgment passed in May 1987 quashed the order
\ndated 29.9.1986\t whereunder  the  seniority  of\t the  direct
\nrecruits and  promotees has  been fixed\t and called upon the
\nState Government to pass a speaking order assigning position
\nin the\tgradation list.\t The State Government issued a fresh
\nnotification  on   24.7.1987  giving  detailed\treasons\t re-
\naffirming the  earlier seniority  which had been notified on
\n29.9.1986. Prior  to the aforesaid notification of the State
\nGovernment Shri\t Gupta had  filed a  writ  petition  in\t the
\nPunjab and  Haryana High  Court which had been registered as
\nCWP No.\t 6012 of  1986 claiming\t his  seniority\t at  No.  22
\ninstead of  72\twhich  had  been  given\t to  him  under\t the
\nnotification dated  29.9.1986. The  promotees also  filed  a
\nwrit  petition\t challenging  the   Government\torder  dated
\n24.7.1987 which was registered as CWP No. 5780 of 1987. Both
\nthe writ petitions, one filed by direct recruit – Shri Gupta
\n(CWP No.  6012 of 1986) and the other filed by the promotees
\n(CWP No.  5780 of  1987) were  disposed of  by\tthe  learned
\nSingle Judge  by judgments  dated 24th January, 1992 and 4th
\nMarch, 1992  respectively,  whereunder\tthe  learned  Single
\nJudge accepted the stand of the promotees and Shri Gupta was
\nplaced below  one Shri\tOP Ganged. Said Shri Gupta filed two
\nappeals to  the Division  Bench against\t the judgment of the
\nlearned Single Judge, which was registered as Letters Patent
\nAppeal nos, 367 and 411 of 1992. The aforesaid Letter Patent
\nAppeals were  allowed by  judgment dated  27th August, 1992.
\nThis judgment  of the  Division Bench  of Punjab and Haryana
\nHigh Court  was challenged  by the  State of  Haryana in the
\nSupreme Court  which has  been registered as CA Nos. 1448-49
\nof 1993.  This Court  granted leave and stayed the operation
\nof the\tjudgment in the matter of fixation of seniority. The
\npromotees also\tchallenged the said judgment of the Division
\nBench in  this Court  which has\t been registered  as CA Nos.
\n1452-1453 of  1993. During  the pendency of these appeals in
\nthis Court,  a Ordinance  was promulgated  on  13.5.1985  as
\nOrdinance No.  6 of 1995 and the said Ordinance was replaced
\nby  the\t  impugned  Act\t  of  20  of  1995  by\tthe  Haryana
\nLegislature. The  validity of the Act was challenged by said
\nShri Gupta and pursuance to the order of this Court the said
\nwrit petition having been transferred to this Court has been
\nregistered as T.C. No. 40 of 1996. So far as the validity of
\nthe Act\t is concerned,\tthe question  of any  usurpation  of
\njudicial power by the legislature does not arise in relation
\nto Irrigation  Branch inasmuch\tas the\tRecruitment Rules of
\n1964 framed  by the  Governor of Punjab in exercise of power
\nunder proviso  to Article  309<\/a> of the Constitution which has
\nbeen adapted  by the  State of\tHaryana on and from the date
\nHaryana was  made separate  State had not been considered by
\nthis court  nor any direction has been issued by this court.
\nThe legislative competence of the State legislature to enact
\nthe Act\t had also  not ben  assailed and in our view rightly
\nsince the  State legislature  have the powers under Entry 41
\nof List\t – II of the Seventh Schedule to frame law governing
\nthe conditions\tof service  of the  employees of  the  State
\nGovernment. That  apart Article\t 309<\/a> itself  stipulates that
\nthe appropriate\t Legislature may  regulate the\trecruitment,
\nand conditions\tof service  of persons\tappointed, to public
\nservices and  posts in\tconnection with\t the affairs  of the
\nUnion or  of any  State subject\t to the\t provisions  of\t the
\nConstitution. Proviso  to Article  309<\/a> confers\tpower on the
\nPresident in connection with the affairs of the Union and on
\nthe Governor  in connection with the affairs of the State to
\nmake rules  regulating the recruitment and the conditions of
\nservice until  provision in  that behalf is made by or under
\nan Act of the appropriate Legislature under Article 309<\/a> main
\npart. In this view of the matter, the legislative competence
\nof  the\t State\tlegislature  to\t enact\tthe  legislation  in
\nquestion is beyond doubt. The only question which therefore,
\narises for consideration and which is contended in assailing
\nthe validity  of the  Act is  that under  the Act the direct
\nrecruits would\tlose several positions in the gradation list
\nand thereby  their  accrued  and  vested  rights  would\t get
\njeopardised and their future chances of promotion also would
\nbe  seriously\thampered  and\tsuch  violation\t tantamounts
\nviolation of  rights under  Part –  III of the Constitution.
\nFor  the  reasons  already  given  while  dealing  with\t the
\naforesaid contention  in connection  with the  Public Health
\nBranch and  the Road Building Branch the contention rased in
\nthe Transfer  Case cannot  be sustained\t and, therefore, the
\nTransfer Case  would stand  dismissed. The  Act<\/a> in  question
\ndealing\t with\tthe  service   conditions  of  he  engineers
\nbelonging to  the Irrigation  Branch must  be held  to be  a
\nvalid  piece   of  legislation\t passed\t by   the  competent
\nlegislature  and   by  giving  it  retrospective  effect  no
\nconstitutional provision  has ben  violated nor any right of
\nthe employee  under Part  – III of the constitution has been
\ninfringed requiring interference by this Court.\n<\/p>\n
     So far  as the  four appeals  are concerned, one at the
\ninstance of  the State\tand other  at the  instance  of\t the
\npromotee engineer,  even  though  it  is  not  necessary  to
\nexamine those  appeals since  the inter\t se seniority of the
\nmembers of  the service\t will have  to\tbe  re-drawn  up  in
\naccordance with\t the provisions\t of the\t Act, yet  arguments
\nhaving been  advanced by the learned advocates appearing for
\nthe parties, we may briefly deal with the same. The Division
\nBench of  the Punjab  and Haryana High Court in disposing of
\nthe Letters  Patent Appeal  in favour  of the direct recruit
\nhas come  to the conclusion that the interpretation given by
\nthe Supreme  Court to the Recruitment Rules dealing with the
\nPublic Health  Branch and  the Roads  and Building Branch in
\nSehgal and  Chopra would  equally apply\t to  the  Irrigation
\nBranch. In  coming to  the aforesaid  conclusion the learned
\nJudges of  the High  Court have\t failed\t to  appreciate\t the
\ndifference between  the rules  dealing with  the  Irrigation
\nBranch and  the two  sets of  rules dealing  with the Public
\nHealth Branch  and the\tRoads and Building Branch. So far as
\nthe rules  dealing with\t the Irrigation Branch is concerned,
\nRule 2(12)(c)  makes a\tpromotee  officer  on  probation  or
\nhaving\tsuccessfully   completed  his\tprobation   awaiting
\nappointment to\ta cadre\t post to  be a member of the service
\nwhich was  not the  position in\t the Public Health Branch as
\nwell as\t in the\t Roads and Building Branch. Then again under
\nrule 5(2)  the percentage of promotees was required to be so
\nregulated so  as not to exceed 75% of the number of posts in
\nthe service  for the  first 10\tyears form  the date  of the
\ncommencement of the Rules and thereafter it shall not exceed
\n50% of\tthe number  of posts  in the  service excluding\t the
\nposts  of  Assistant  Executive\t Engineer.  Proviso  to\t the
\naforesaid  rules  also\tentitles  the  Government  to  grant
\npermission beyond  75% during  the first  10  years  of\t the
\ncommencement of\t the rules and beyond 50% thereafter in case
\nsufficient number  of direct  recruits – Assistant Executive
\nEngineers  are\t not  available\t  and  considered   fit\t for
\npromotion. Rule\t 12 which  deals with  the determination  of
\ninter se  seniority is\talso  somewhat\tdifferent  than\t the
\nsimilar rule  for the Public Health Branch and the Roads and
\nBuilding Branch\t which had  been considered by this Court in
\nthe cases  of Sehgal and Chopra. In this view of the matter,
\nthe Division  Bench of the Punjab and Haryana High Court was
\nnot justified  in disposing  of the  appeal relying upon the
\nearlier decisions  of this  Court in A.N. Sehgal’s case. The
\nlearned Judges\thave not  focussed their  attention  to\t the
\ndifference in  the rules meant for the Irrigation Branch and
\nthe Rules  meant for  the Public Health Branch and Roads and
\nBuilding Branch. The impugned judgment, therefore, passed by
\nthe Division  Bench of\tthe Punjab and Haryana High Court is
\nerroneous and  cannot be  sustained. But  as has been stated
\nearlier it  is not necessary to delve into the question in a
\nmore detailed  manner since  the Act  having come into force
\nand the\t Act  being  made  effective  retrospectively  w.e.f
\n1.11.1966, the\tdate on\t which\tthe  State  of\tHaryana\t was
\nformed, the  inter se  seniority has  to  be  determined  in
\naccordance with the provisions of the Act. Consequently, the
\njudgment of  the Punjab\t and Haryana  High Court in LPA Nos.
\n367 and\t 411 of 1992 is set aside an the State of Haryana is
\ndirected to  re-determine the  inter  se  seniority  of\t the
\nmembers of the service belonging to the Irrigation Branch in
\naccordance with the provisions of the Act. Civil Appeal Nos.
\n1448-1449 of 1993, 1452-1453 of 1993 and T.C. No. 40 of 1996
\nare disposed of accordingly.\n<\/p>\n
     In the  ultimate result, therefore, we hold Haryana Act
\n20 of  1995 is\tintra virus  except part of Section 25<\/a> which
\nhas been  held to  be ultra virus. The Act<\/a> having been given
\nretrospective effect with effect from 1.11.1966 the inter se
\nseniority of  direct recruits  and promotees  in each of the
\nservices, namely,  the PWD  Branch, the Public Health Branch
\nand the\t Irrigation Branch  will have  to be  re-drawn up in
\naccordance with\t the provisions\t of the\t Act. The  seniority
\nlists already  drawn up\t subsequent to\tthe judgment of this
\ncourt in the case of Sehgal and Chopra and as well as during
\nthe pendency  of these\tappeals in  this  court\t are  of  no
\nconsequence in\tview of\t the Act  coming into  force. It is,
\nhowever, made  clear that any promotion already given on the
\nbasis of  seniority determined\tby the\tGovernment under the
\npre-existing rules  will not be annulled notwithstanding any
\nchange in  the seniority to be determined under the Act. The
\nimpugned judgments  of Punjab and Haryana High Court are set
\naside. The  State Government  is directed to re-consider the
\nquestion of seniority of the employees of the three Branches
\nunder the  Act within  a period of six months form today and
\nto  give   consequential  promotion   on  that\t basis\tsoon
\nthereafter.\n<\/p>\n
     All the  appeals and the transfer cases are disposed of
\naccordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.S. Bhola & Ors vs B.D. Sardana & Ors on 11 July, 1997 Author: Pattanaik Bench: G.B. Pattanaik PETITIONER: S.S. BHOLA & ORS. Vs. RESPONDENT: B.D. SARDANA & ORS. DATE OF JUDGMENT: 11\/07\/1997 BENCH: G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT: J U D G M E N T PATTANAIK, J. I have […]<\/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-269480","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.S. Bhola & Ors vs B.D. Sardana & Ors on 11 July, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-s-bhola-ors-vs-b-d-sardana-ors-on-11-july-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.S. Bhola & Ors vs B.D. 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