State Language Teachers’ Association v. State of Andhra Pradesh

Order

In view of the majority, the writ petitions stand disposed of in the following manner. (i) The impugned Act is constitutionally valid and does not violate Articles 14 and 16 of Constitution; (ii) The impugned Act does not amount to usurpation of judicial powers of Legislature. It only removed the basis for the decision of this Court in P.C.S.Naidu v Correspondent, SSRSO Upper Primary School, and it is not ultra vires; (iii) The impugned Act is silent with regard to recovery of the amounts already paid to those Grade-II Pandits who availed the benefit under G.O.Ms.No.330, dated 10.08.1983 and hence the Government shall not recover any amount actually and already paid to any of the Language Pandits Grade-II who were given benefit of Scale of Pay of Grade-I. ________________ (V.V.S.RAO, J) _________________ (N.V.RAMANA, J) ____________________ (P.S.NARAYANA, J)

16.04.2010 THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION Nos. 21457 AND 23506 OF 2004; 1462, 8907, AND 12917 of 2005, 11688 AND 22577 OF 2006 COMMON ORDER (Per Hon’ble Sri Justice V.V.S.Rao) INTRODUCTION Andhra Pradesh Language Pandits Grade-II (Regulation of Scale of Pay) Act, 2004 (A.P.Act No.1 of 2005) is impugned as ultra vires and arbitrary in this batch of seven writ petitions. The challenge is led by State Language Teachers Association. The impugned Act replaces and repeals State Governor’s Ordinance – Andhra Pradesh Ordinance No.5 of 2004; with the same title. The writ petitions were initially filed challenging the said Ordinance but after legislative enactment, petitions have been amended. BACKGROUND FACTS Sri E.Manohar and Sri M.R.K.Chowdhary, senior counsel appearing for petitioners and Additional Advocate General appearing for State endorse that unusual long preamble to the impugned Act reflects admitted facts. Before excerpting the same, we may give a précis of background of the case. Secondary Grade Basic Training Teachers (SGBT) and B.Ed., Assistants constitute subordinate teaching staff in the schools under the control of Government as well as local authorities like Municipalities and Panchayats. Functional inequality as well as pay disparity delineate the two classes – the latter posts require a degree in Bachelor of Education and the former posts require SGBT Certificate. Language Pandits – Grade-I and Grade-II – formed different class of teachers in schools. Here again, the posts do not have functional equality and pay parity for obvious reasons. Some time in early 1980s, Government decided to give ‘B.Ed., Assistant pay scales’ to SGBT teachers with B.Ed. Emboldened by such move, the Federation of Andhra Pradesh Teachers’ Organisations (FAPTO) agitated for Grade-I scale of pay to Grade-II Pandits. Government issued orders giving such benefit to those Grade-II Pandits working in Upper Primary Schools (UPSs). However, the benefit was given only to those working as on 11.03.1982 with necessary qualifications. This cut off date was impugned before Andhra Pradesh Administrative Tribunal (APAT) in Tajuddin Ahmed v Government of Andhra Pradesh (Order dated 17.08.1989 Representation Petition No.2158 of 1986) which held that denial of the benefits to those falling outside the cut off date as arbitrary and discriminatory. Faced with a situation to give benefit to all the teachers irrespective of cut off date, Government issued further orders cancelling the earlier order giving benefit of higher scale of pay to Grade-II Pandits. The cancellation order was subject matter of a challenge, which was upheld. The teachers association and aggrieved individuals assailed APAT order before this Court. In P.C.S.Naidu v Correspondent, SSRSO Upper Primary School[1], a Division Bench of this Court set aside APAT order. A challenge before Supreme Court was unsuccessful and SLP was dismissed on 27.07.2004. Government then promulgated Ordinance No.5 of 2004 on 6th November, 2004, which has been replaced by A.P.Act No.1 of 2005. Preamble of the Act reads as under. Whereas, the Government of Andhra Pradesh issued orders in G.O.Ms.No.330, Education, dated 10.08.1983 allowing Grade-I Scale of Pay to all the Grade-II Language Pandits who are working in High Schools and Upper to Government, Local Bodies and Private Primary Schools belonging management’s and who possess requisite qualifications prescribed for the post of Grade-I Language Pandits as on 11-03-1982 on the ground that there is stagnation in promotions; And whereas, certain language Pandits Grade-II who were appointed after 11-03-1982 possessing Grade-I qualifications and those who were appointed prior to 11-03-1982 and acquired Grade-I qualifications after 11-03-1982 challenged the cut off date in the Honourable Andhra Pradesh Administrative Tribunal and the Tribunal in their Judgment dated 17-08-1989 in R.P.No.2158 of 1986 has allowed the Representation Petition and struck down the cut off date; And whereas, the Division Bench of the Honourable Andhra Pradesh Administrative Tribunal in their Judgment in several other O.A.No.49150 of 1991, dated 28-02-1994, O.A.No.82955 of 1990, 3406 and 3407 of 1994, dated 05-12- 1994, O.A.Nos.59969 and 970 of 1990, dated 16-01-1995 observed that the above cut off date is uniformly applicable to all persons and such a classification was made for a class of employees and held that the prescription of the cut off date is not arbitrary, illegal and dismissed the O.As.; And whereas, the Government in G.O.Ms.No.164, Finance and Planning (F.W.PRC-I) Department, dated the 1st June, 1982 have formulated a scheme of ten years and fifteen years allowing certain financial benefits to all the category of teachers and thus the Language Pandits Grade-II who acquired Grade-I qualification after cut off date were allowed Grade-I Scale on crossing fifteen years of service under Automatic Advancement Scheme applicable to all the teachers including the Language Pandits and thereby they were allowed financial benefits step by step after completion of ten years and fifteen years of service and allowed the next promotion post scale of pay and hence, there is no stagnation and the teachers are getting financial benefits on the basis of service put in by them and hence there is no necessity and justification to allow higher scale of pay to certain category of teachers merely on the basis of acquiring higher qualification; And whereas, by introduction of the Automatic Advancement Scheme, the Language Pandits Grade-II are also getting financial benefits on par with other Government employees and that no other category of Government employees in the State are getting higher scales merely on the basis of acquiring higher qualifications and hence there is no justification to give this benefit only to Language Pandits Grade-II; And whereas, the Language Pandits Grade-II will get double benefit, if the G.O.Ms.No.330, Education, dated 10th August, 1983 G.O.Ms.No.176, Education, dated 22nd December, 2000; And whereas, the Honourable Andhra Pradesh Administrative Tribunal in several O.A.Nos.377 of 2001 and batch dated 13-06-2002 upheld G.O.Ms.No.176, Education, dated 22nd December, 2000 cancelling G.O.Ms.No.330, Education, dated 10th August, 1983 and declared the cut off date 11th March, 1982 valid one; their orders in upholding And whereas, the Honourable High Court of Andhra Pradesh in W.P.Nos.26260 of 2000 and batch, dated 12-09-2003 found that the orders of the Andhra Pradesh Administrative Tribunal the G.O.Ms.No.176, Education, dated 22nd December, 2000 is erroneous and contrary to law and accordingly set aside the same and dismissed the writ petition Nos.20605 of 2001 and batch filed by the Government challenging the orders of the A.P.A.T. in R.P.No.2158 of 1986, dated 17-08-1989; And whereas, the Honourable Supreme Court of India in its order dated 27th July, 2004 dismissed the SLP Nos.5869-5998 of 2004 filed by the Government against the orders of the Honourable High Court of Andhra Pradesh in W.P.No.26260 of 2000, dated 12th September, 2003; And whereas, for implementation of the G.O.Ms.No.330, Education, dated the educational qualifications runs contrary 10th August, 1983 at this length of time, huge financial commitment of rupees three hundred and ninety four crores has to be borne by the Government for payment of arrears to about 56,750 Grade-II Language Pandits and there will be a recurring expenditure of rupees sixty three crores on this account every year; And whereas, if the benefits given to this category of employees there is every chance that another category of employees in the School Education Department and other Government Departments may claim the same benefit which will be imposing recurring extra financial burden on the Government; And whereas, it is an established fact that payment of scales pertaining to a higher category of posts to holders of lower category posts merely on the basis of possessing to all norms of administration and makes a mockery of the entire process of selections based on higher qualifications for a higher posts and if this logic were to be conceded, it is possible that lakhs of employees in Government service with higher qualifications working in lower posts may approach the Court of law and ask for scales applicable to the higher posts; And whereas, there is neither any fundamental right nor any equity in such a measure which amounts to granting double benefit by virtue of implementation of automatic advancement scheme and the scarce public resources among competing sections of the society will have to be allocated with a great deal of caution, equity and accountability to the public and society; And whereas, it has been decided to give effect to the constitutional mandate by regulation of the scales of pay of the Language Pandits Grade-II working in the High Schools and Upper Primary Schools belonging to Government, Local Bodies and Private Managements, as it is very clear that the intendment of Government at the time of issuing G.O.Ms.No.330, Education, dated 10-08-1983 was only for a limited number of Language Pandits who stagnated for a certain period of time and it is certainly not the intention of the Government that for generations to come such a benefit should be given; And whereas, the Legislative Assembly of the State is not in Session and the Governor of Andhra Pradesh is satisfied that circumstances do exist which render it necessary for him to take immediate action. As the questions raised are purely in the realm of constitutional law, it may not be necessary to refer to lengthy pleadings on record. However, a mention may be made to the admitted fact that pursuant to the orders of Government, the Tribunal and this Court, till the promulgation of Ordinance on 06.11.2004, all the Grade-II Pandits who possessed or later acquired qualifications prescribed for the posts of Language Pandits Grade-I were paid salary in the scale of pay prescribed for Grade-I Pandits. THE IMPUGNED ACT The Act has six Sections. Section 2 in its two clauses defines the terms ‘Government’ and ‘Language Pandits Grade-II’. Section 3 reads as under.

3. Regulation of Pay of Language Pandits Grade-II: Notwithstanding anything contained in any order of the Government or any Court or Tribunal, the Language Pandits Grade-II shall draw the Scale of Pay attached to the said post even if they possessed or later acquired the qualifications prescribed for the post of Language Pandits Grade-I. On a plain reading, the provision with non-abstante clause declares that ‘Language Pandits Grade-II’ shall draw only the scale of pay attached to the post even if they possessed or later acquired qualifications prescribed for ‘Language Pandits Grade-I’. Section 3, therefore, purports to withdraw the benefit conferred by the Government in their order G.O.Ms.No.330, dated

10.08.1993. The legislature was aware of various Court cases which virtually enlarged the scope of G.O.Ms.No.330, in that the benefit thereunder was conferred not only on those teachers, who were working as Language Pandits Grade-II with Language Pandits Grade-I qualifications prescribed therefor or acquired qualification subsequently, but even to the Language Pandits Grade-II appointed later. So as to render any right or vested right unenforceable, the Act made provision for ‘abatement of claims’ in Section 4 of the Act, which reads as under.

4. Abatement of Claims: Notwithstanding any Government Order, Judgment, decree or order of any Court or Tribunal, the claims of Language Pandits Grade-II for allowing the pay scale of Language Pandits Grade-I shall stand extinguished the date of commencement of this Act and accordingly; (1) The orders issued by the Government allowing to the Language Pandits Grade-II the Scale of Pay attached to Grade- I Post for possessing requisite qualification prescribed for the post of Language Pandits Grade-I shall stand cancelled. (2) No suit or other proceedings shall be instituted, maintained or continued in any Court, Tribunal or other Authority by the Language Pandits Grade-II against the Government or any person or Authority whatsoever for fixation of pay in the scale of Language Pandits Grade-I. (3) No court shall enforce any decree or order directing the grant of Language Pandits Grade-I scale to Language Pandits Grade- II. Starting with non-abstante clause, the main part of Section 4 extinguishes the claims of Language Pandits Grade-II for pay scale of Language Pandits Grade-I notwithstanding (i) the Government Order and (ii) Judgment/decree/order of any Court/Tribunal. Further, it nullifies the orders issued by Government allowing Grade-I scale of pay by duly cancelling those orders. Further more, it introduces ‘no certiorari clause’ barring suit or any proceedings in any Court, Tribunal or authority by Language Pandits Grade-II’ against the Government or any person or authority for fixation of pay in the scale of Language Pandits Grade-II. Having regard to the history of the whole exercise, the intention of the legislature is very clear that it renders all orders by the Government, Courts, Tribunals unenforceable and seeks to extinguish the rights/claims of Language Pandits Grade-II, which they had or might have got under the Government Order dated 10.08.1993 conferring on Language Pandits Grade-II scale of Language Pandits Grade- I. SUBMISSIONS Learned senior counsel for petitioners made the following submission. The impugned Act is unconstitutional, that the impugned Act arrogates and encroaches upon the judicial power vested in the judicature and that the impugned Act seeking to extinguish or nullify the claims/vested rights is arbitrary and illegal. They placed reliance on M.M.Pathak v Union of India[2], State of Gujarat v Raman Lal Keshav Lal Soni[3], Ex-Capt. K.C.Arora v State of Haryana[4], In re of Cauvery Water Disputes Tribunal[5], S.R.Bhagwat v State of Mysore[6], Chairman, Railway Board v C.R.Rangadhamaiah[7], State of Maharashtra v Tanuja[8], B.Krishna Bhat v State of Karnataka[9], P.Tulsi Das v Government of Andhra Pradesh[10], PUCL v Union of India[11], Virender Singh Hooda v State of Haryana[12], P.C.S.Naidu (supra), Bombay Dyeing v Bombay Employees Union Action Group[13] and Grand Kakatiya Sheraton Hotel & Towers Employees & Workers Union v Srinivasa Resorts Limited[14]. Learned Additional Advocate General contends that the impugned Act removed the basis for the Judgment of this Court in P.C.S.Naidu, and therefore, the benefit conferred by the Government in G.O.Ms.No.330 is no more enforceable. As the very purpose of the legislation is to deny the benefit of scale of Language Pandits Grade-I to Language Pandits Grade-II, there is no arbitrariness or infirmity in Section 4 extinguishing all claims. When the very intention of the Government in issuing G.O.Ms.No.330 restricting the benefit only to those Language Pandits Grade-II appointed on or before cut-off date and the same was extended to all those subsequent appointees also, the legislature in its wisdom rectified the anomaly, of a person holding a lower post drawing higher scale and therefore, the legislation is sustainable. He placed reliance on M/s.Hiralal Rattanlal v State of Uttar Pradesh[15], State of Jammu & Kashmir v Triloki Nath Khosa[16], State of Tamil Nadu v Arooran Sugars Limited[17], Process Technicians and Analysts’ Union v Union of India[18], P.C.S.Naidu, Virender Singh Hooda (supra), Mylapore Club v State of Tamil Nadu[19] and State of Bihar v Bihar Pensioners Samaj[20]. PRINCIPLES AND PRECEDENTS An Act of Parliament or legislature of a State is set aside by the Supreme Court or a High Court as being beyond the competence of the legislature or violative of rights or otherwise unconstitutional. Is it permissible for the Parliament or the legislature again fundamental to make the same Act? The executive government of the State makes a policy which is either invalidated or scope of such policy is enlarged by the constitutional Court on the ground that it is arbitrary and/or discriminatory. Is it permissible for the executive Government again to promulgate a similar policy? The constitutional principles that govern these two situations are well established and settled. Various precedents have been cited by the counsel. First we may notice some of those decisions and then deal with settled principles on this aspect of constitutional law. In M.M.Pathak (supra), the validity of Life Insurance Corporation (Modification of Settlement Act), 1976 was challenged. The said Act was made by Parliament in the following circumstances. The employees and LIC entered into settlements relating to terms and conditions of class III and class IV employees including the payment of bonus, which was permissible under the provisions of LIC Act. There was one such settlement effective from 01.04.1973, to be in force for a period of four years upto 31.03.1977 inter alia providing for payment of profit sharing bonus. According to said relevant clause in the settlement, there shall be no profit sharing bonus, but LIC may from time to time grant such bonus subject to directions of Central Government and LIC agreed to pay 15% annual cash bonus. Even before the expiry of four years period, the President of India issued Ordinance curtailing the right to bonus. This evoked protests by the employees. All India Insurance Employees Association filed a writ petition before High Court of Calcutta for direction to LIC to act in accordance with settlement duly refusing to follow administrative instructions. The writ petition was allowed on 21.05.1976. A week thereafter, Parliament enacted LIC Modification of Settlement Act, whereunder the settlement relating to bonus to class III and class IV employees was made unenforceable. Before the Bench of seven Judges of Supreme Court, two grounds were urged, that the said Act contravenes Article 31(2) of Constitution as the right to property under the settlement is taken away without payment of compensation and that it infringes the fundamental right under Article 19(1)(f) of Constitution. Majority led by Bhagwati,J (as his lordship then was) came to conclusion that LIC Amendment Act did not absolve LIC from the obligation imposed by the Judgment of Calcutta High Court to implement the

settlement, which came into force from 01.04.1973. The submission of LIC on Sri Prithvi Cotton Mills Limited v Broach Borough Municipality[21], that the basis for declaration of Calcutta Judgment having been removed by subsequent Act, the Mandamus became unenforceable was not accepted. Distinction was made between declaratory Judgment of the Court in which event such declaration can be nullified by the Legislature by removing the basis and Judgment giving a mandatory order to do something in which event the Legislature cannot invalidate the Mandamus. Majority also observed that if by reason of retrospective alteration of factual or legal situation, a Judgment of the Court is rendered ineffective, the remedy is appeal or review but as long as the Judgment stands, the State cannot disregard or ignore the same. The Act impugned before their Lordships was declared unconstitutional as offending Article 31(2) of Constitution. Chief Justice M.H.Beg, in his separate concurring opinion held that the rights crystallised in a Judgment cannot be taken away by the Legislature. The relevant observations are as follows. This Court has decided in Indira Nehru Gandhi v Raj Narain[22] that even a constitutional amendment cannot authorise the assumption of a judicial power by Parliament. One of the tests laid down there was whether the decision is of a kind which requires hearing to be given to the parties, or, in other words, involves at least a quasi-judicial procedure, which the Parliament does not, in exercise of its legislative power, follow. A decision reached by the Central Government, Under Section 11(2) of the Act, is the result of a satisfaction on matters stated there and would imply quasi-judicial procedure where the terms of a settlement had to be reviewed or revised. But, the legislative procedure, followed here, does not require that to be done. It would, in any event, be unfair to adopt legislative procedure to undo such a settlement which had become the basis of a decision of a High Court. Even if legislation can remove the basis of a decision it has to do it by an alteration of general rights of a class but not by simply excluding two specific settlements between the Corporation and its employees from the purview of the Section 18 of the Industrial Disputes Act, 1947, which had been held to be valid and enforceable by a High Court. Therefore, according to the interpretation I prefer to adopt the rights which had passed into those embodied in a judgment and became the basis of a Mandamus from the High Court could not be taken away in this indirect fashion. In re Cauvery Water Disputes Tribunal (supra) arose out of Article 143, a Presidential reference. In Cauvery river water dispute between State of Tamil Nadu and State of Karnataka, duly constituted Cauvery Water Disputes Tribunal passed an interim order on 25.06.1991. A month thereafter, the Governor of Karnataka in exercise of powers under Article 213(1) of the Constitution promulgated an ordinance empowering the State Government to abstract requisite flows from Cauvery River and its tributaries to protect, preserve and maintain irrigation in the State notwithstanding any interim order passed by Tribunal. The President of India then referred three questions inter alia whether the ordinance passed by Karnataka Governor is in accordance with the Constitution. An incidental question arose as to whether the competent legislature can set aside the Court’s decision inter- parties and effect the respective rights and liabilities. Relying on Municipal Corporation of the City of Ahmedabad v New Shrock Spinning & Weaving Company Limited[23], Supreme Court held: The legislatures under the Constitution have, within the prescribed limits, power to make laws prospectively as well as retrospectively. By exercise of those powers a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legislature in the country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by the Court. … The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal. (emphasis supplied) In S.R.Bhagwat (supra), Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 was challenged as being in conflict with the order of the High Court between the parties. The petitioners therein who were civil servants (Deputy Conservators of Forest) of erstwhile State of Hyderabad and Bombay were allotted to State of Mysore under States Reorganisation Act, 1956. Their integration was to be affected in accordance with the principles communicated by Central Government for equation of the posts and preparation of seniority list. Accordingly, the petitioners were given promotion subject to the rider that the promotion would be revised in accordance with the ranking in the final seniority list as on 01.11.1956. Subsequently, a provisional order of equation of posts was made and a senior conservator and assistant conservator were equated with the post of deputy conservator. When they objected, deputy conservators of Hyderabad and Bombay and senior assistant conservators of Mysore were included accepting their contention. Several writ petitions filed before Mysore High Court were disposed of and the appeal to Supreme Court was rejected. Even thereafter as per the directions of Central Advisory Committee, Union Government considered the matter and issued fresh notifications which were again unsuccessfully challenged before High Court and Supreme Court. In that background, the petitioners again filed writ petition before the High Court for grant of deemed promotion from the day their juniors were promoted and consequential benefits. These writ petitions were allowed by Division Bench of High Court of Mysore, which became final. As they did not get the mandatory benefits, they filed contempt case, which was pending. In the meanwhile, State Government issued Ordinance (which became Act) under which the financial benefits were sought to be taken away. This was assailed in a writ petition before the Supreme Court. Inter alia it was urged that the impugned Act seeks to nullify the final binding decisions of the High Court against the State and in favour of the petitioners. Relying on In re Cauvery Water Disputes Tribunal a n d G.C.Kanungo v State of Orissa[24], Supreme Court held that the State cannot cast off its ‘Judgment Debtors role’ by resorting to legislative independence and that such a legislation would be contrary to rule of law. Relevant observations are as follows. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance over-rules such judgment and is not in the realm of a legislative enactment which displaces the basis of foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. (emphasis supplied) I n P.Tulsi Das (supra), the Andhra Pradesh Educational Service Untrained Teachers (Regulation of Services and Fixation of Pay) Act, 1991, was challenged insofar it retrospectively takes away the right accrued to teachers from 10.02.1967 under Andhra Pradesh Educational Rules, 1966 framed and executive orders issued under Article 162 of Constitution. The relevant facts therein are as follows. Due to dearth of trained school assistants in Science and Mathematics in Telangana Area for being appointed to A.P.Educational Services in various schools, the Government issued orders permitting appointment of untrained graduates in those subjects with minimum pay with allowances admissible for trained graduate teacher for a period of two years. They were not eligible to draw any increments till they acquire necessary qualifications. The benefit of minimum pay was denied to untrained graduates in humanities, who were paid Rs.100/- per month. Humanities category teachers challenged the different treatment before this Court, which allowed the writ petition and held that the teachers in Humanities are entitled minimum pay of Rs.130/- on par with teachers in Science and Mathematics. The judgment became final. In the meanwhile, SGBT teachers and school assistants in Humanities working in Zilla Parishad schools also approached the High Court contending that they were denied the benefit on the ground that they were not graduates in Science and Mathematics. The writ petition was A.P.Administrative Tribunal. The case was disposed of following the transferred decision of the High court in the case of untrained humanities teachers holding that untrained graduates in Humanities would be entitled to minimum pay of Rs.130/- as is admissible to trained B.Ed., Assistants with effect from 10.02.1967. The order of the Tribunal became final and subsequently similar order was passed in number of cases. At that stage, the State Government promulgated Ordinance which was subsequently replaced by Act. The same was challenged before the Tribunal which upheld the Act, subject to certain modifications. In Appeals sphere. Supreme before the Supreme Court, it was mainly contended that the Act expropriated vested rights in contravention of Articles 14 and 16 besides encroaching into judicial v S.D.Munshaw[25], Ex-Capt. K.C.Arora (supra) a n d Chairman, Railway Board (supra) and held that the rights acquired by teachers supported by sufficient legal basis due to various Government Orders issued under Article 162 cannot be trampled by the State retrospectively. The relevant observations are as follows. considered Mathuradas Court Such rights, benefits and perquisites acquired by the Teachers concerned cannot be said to be rights acquired otherwise than in accordance with law or brushed aside and trampled at the sweet will and pleasure of the Government, impunity. Consequently we are unable to agree that the Legislature could have validly denied those rights acquired by the appellants retrospectively not only depriving them of such rights but also enact a provision to repay and restore the amounts paid to them to the State. The provisions of the Act, though can be valid in its operation 'in future' can not be held valid in so far as it purports to restore status quo ante for the past period taking away the benefits already available, accrued and acquired by them. … … No exception could be taken, in our view, to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the category of the persons similarly situated whether approached courts or not seeking relief individually. The provisions contained in Section 2 have to be read down so as to unconstitutionality arising out of its retrospective application. it only prospective, the same to save (emphasis supplied) In Virender Singh Hooda, Haryana Civil Service (Executive Branch) and Allied Services and Other Services, Common/ Combined Examination Act, 2002 (for brevity, Haryana Act) (enforced from 29.08.1989) was challenged on the ground that such retrospective enforcement amounts to usurpation of judicial power by State Legislature with a view to overrule the decisions of Supreme Court rendered in 1999 and 2000. On 22.03.1957 and

26.05.1972, Government of Haryana issued executive instructions by way of circulars to the effect that all the vacancies which occurred in Haryana Civil Service (Executive Branch) upto the period of six months from the date of recommendations made by Haryana Public Service Commission be filled up out of the same selection. There were also many circulars to the similar effect. The facts in brief were that in 1989, Public Service Commission advertised twelve posts in Haryana Civil Services Executive Branch and number of posts through combined competitive examination. After written and oral examination, Service Commission made in Allied Services recommendations for appointment against twelve posts in civil services and forty eight posts in allied services, which were made in December, 1992 and April, 1993 respectively. Virender Singh Hooda and two others were appointed though they secured position in the merit list at serial Nos.8, 10 and 12 on the ground that only seven general category posts were advertised. In the meanwhile, in November, 1992 Commission issued another advertisement to fill up twelve posts in executive branch and fifty posts in allied services. Again after following the procedure, Commission made recommendations for appointment of advertised posts. Sandeep Singh and two others were appointed to allied services as per their merit. In May, 1996, another advertisement was issued for certain number of posts and after following the process, Commission recommended in June, 1999 and accordingly the State Government appointed twenty persons to executive branch and thirty three persons to allied services. Hooda filed writ petition challenging his non-appointment, which was dismissed. He filed S.L.P., and Supreme Court in Virender Singh Hooda directed the State Government to consider his case and the case of other similarly situated persons. In compliance with the same, Hooda and two others were appointed to the posts in executive branch. Sujan Singh and two others also filed a writ petition before the Supreme Court, which was also disposed of in terms of Virender Singh Hooda. The State Government was unsuccessful in their S.L.P., before Supreme Court and review petition was also dismissed. As a result of which, Sujan Singh and two others were appointed to executive branch. Sandeep Singh (hereafter called, ‘Sandeep Singh’) and two others who were appointed to allied services pursuant to advertisement in November, 1992 also filed writ petition, which was dismissed but the same having been set aside they were also appointed to executive branch in December, 2000. The State therefore enacted Haryana Act repealing the two circulars referred to above with effect from 29.08.1989 and prohibited appointment to any posts beyond the number of posts advertised. The right to seek appointment by any candidate by virtue of a Judgment, order, decree or decision of Court of law, Act, rule, regulation or executive instructions, was taken away. In the writ petitions, Supreme Court considered two questions as to whether Haryana Act is ultra vires as it amounts to usurpation of judicial power by Legislature or it removes the basis of decisions in Virender Singh Hooda a n d Sandeep Singh cases and whether the Act is violative of Articles 14 and 16 of Constitution of India. The apex Court after referring to Tirath Ram Rajendra Nath v State of Uttar Pradesh[26], Indira Nehru Gandhi (supra), Government of Andhra Pradesh v Hindustan Machine Tools Limited[27], I.N.Saksena v State of Madhya Pradesh[28], M.M.Pathak, Raman Lal Keshav Lal Soni (supra), Lohia Machines Limited v Union of India[29], In re Cauvery Water Disputes Tribunal, State of Haryana v Karnal Cooperative Farmers’ Society Limited[30], Union of India v Tushar Ranjan Mohanty[31], S.R.Bhagwat, Indian Aluminium Company v State of Kerala[32], Arooran Sugars Limited (supra), Chairman, Railway Board and National Agricultural Cooperative Marketing Federation of India v Union of India[33] reiterated the essential principles as below. It is well settled that if the legislature has the power over the subject- matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law. … … It is equally well settled that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary power conferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. … … The result of the aforesaid discussions is that retrospectivity in the Act cannot be held to be ultra vires except to a limited extent which we will presently indicate. It is not a case of usurpation of judicial power by the legislature. … … A valid law, retrospective or prospective, enacted by legislature cannot be declared ultra vires on the ground that it would nullify the benefit which otherwise would have been available as a result of applicability and interpretation placed by a superior court. A mandamus issued can be nullified by the legislature so long as the law enacted by field, it does not contravene constitutional provisions and usurp the judicial power and only removes the basis of the issue of the mandamus. (emphasis supplied) In P.C.S.Naidu, this Court was dealing with the challenge to the order passed by the Full Bench of APAT upholding the validity of G.O.Ms.No.176, dated 22.12.2000 cancelling G.O.Ms.No.330, dated 10.08.1983. The Division Bench considered three questions which are as follows. (i) Whether the order passed by the erstwhile Tribunal in R.P.No.2158 of 1986 can be agitated in the present writ petitions, (ii) Whether the Tribunal can ignore the decision of the erstwhile Tribunal in the aforesaid O.As., and take a different view in the present OAs; and (iii) Whether the order sustaining the validity of G.O.No.176, dated 22.12.2000 the validity of G.O.Ms.No.176 is concerned, it was held: Insofar as legal? Coming to the question of the validity of the cancellation of the order, we do not find any difficulty in finding fault with the said G.O. Admittedly, the G.O. No. 176 was issued after a lapse of 18 years. When the matters were settled long back and all the persons continued to receive the benefits for the last more than two decades, the reasons given in the said G.O stating that the Language Pandits cannot be allowed to have two benefits namely, under the automatic advancement scheme in G.O.117 and scale of Language Pandit Grade-I in G.O. No. 330. But this reasoning is fallacious on the face of it. As far as automatic advancement scheme is concerned, it is conferred on an employee who has put in 10 and 15 years of service and in order to extricate from the stagnations from the present scales, higher scales were given to them without reference to the higher qualifications. But whereas, in this batch of writ petitions, the posts occupied by the persons who were having higher qualifications and suitable for holding the post of Language Pandits Grade-I are given the scale of Language Pandits Grade-I and that was treated as personal to them. It is also stated that the said posts continued to be treated as Grade-I till the incumbents are regularly promoted to the post of Grade-I Pandits. It is also on record that the Government has issued instructions that there shall not be further creation of Grade-I posts occupied by the Language Pandits Grade- II with qualifications of Grade-I posts. SETTLED PRINCIPLES The Parliament or State legislatures exercise their powers subject to constitutional limitations, which may be express or implied. That legislative authority cannot encroach upon judicial power because if the legislature cannot indirectly control the action of the Courts by requiring them to construe law according to the views of legislature, it is clear that it cannot do so directly by setting aside the Court judgments or directing manner, method and process of judicial wing of the State. “To declare what the law is, or has been, is judicial power; to declare what the law shall be, is legislative power” (see ‘A Treatise on the Constitutional Limitations’ by Thomas M. Coolie, Indian Reprint 2005, pp.94, 95). The axiom is subject to exceptions. First, if the law invalidated by Court is repairable in the sense that it can be reenacted after removing the defects pointed out or removing the basis which rendered it invalid, the power to reenact law cannot be denied. But a law which cannot be repaired for the reason that the legislature lacks competency or contravening the constitutional provisions, it cannot be reenacted. The legislature oversteps its authority by ex second exception is that ordinarily a decision, decree, determination, judgment and order of a judicial authority inter-parties, cannot be set aside by legislature although the legal basis of such decision or judgment can be removed retrospectively. This is again subject to a rider that such retrospective legislation cannot take away valid and legal enforceable rights vested if such denial violates fundamental rights. The next exception is that a policy of the executive government, which confers right on the people or a class of people can always be withdrawn by competent legislature notwithstanding any judicial intervention either curtailing or enlarging scope of such policy. With the above brief account of the subject, we may notice settled principles, as can be culled out from precedents, are as follows. (1) Parliament or a State legislature which has power to make laws within their legislative spheres also have power to validate laws held invalid or to validate/invalidate excessive executive action. The power to make laws prospectively and retrospectively includes the subsidiary or auxiliary power to validate laws which have found to be invalid (see Jadao Bahuji v Municipal Committee, Khandwa[34], West Ramnad Electric Distribution Co. Ltd., M/s. v State of Madras[35], Rai Ramkrishna v State of Bihar[36], H.H.The Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v State of Rajasthan[37] and R. L. Arora v State of U.P.[38]). (2) The legislatures in India do not possess judicial power. Generally, it is not competent for any legislature to declare that a previous decision of the Court would not bind (see Sri Prithvi Cotton Mills Limited (supra)). ‘A Court’s decision must always bind unless the conditions on which it is based are so fundamentally altered or that the decision could not (see The New have been given in the altered circumstances.’ Shrock Spinning and Weaving Company Limited (supra), Janapada Sabha Chhindwara v The Central Provinces Syndicate Limited[39] and State of Tamil Nadu v M.Rayappa Gounder[40]). (3) The legislative competence of Parliament and/or State legislatures to make laws includes the power to validate the law declared invalid or validate executive action taken under invalid defective laws. Such power is considered as subsidiary or auxiliary power. (see Jadao Bahuji (supra), Rai Ramkrishna (supra), Hindustan Machine Tools Limited (supra) and I.N.Saksena (supra)). (4) Parliament or State legislatures have no power to advise or direct State agencies, instrumentalities or State players to disregard or disobey judicial decisions, orders etc., or direct that a judicial proceeding is discharged or to overrule Court decisions or making them ineffective or rendering them void. (see Basanta Chandra Ghose v Emperor[41]; Janapada Sabha Chhindwara (supra), M. Rayappa Gounder (supra) and I.N.Saksena). (5) There is clear distinction between legislative/executive action encroaching upon judicial power and legislative action nullifying the effect of judicial decision by changing the law retrospectively within permissible limits. The encroachment of judicial power amounts to arrogation of judicial power, which is impermissible whereas nullification of a judicial decision by changing the law retrospectively is constitutionally permissible. (see M/s.Hiralal Rattanlal (supra) and Triloki Nath Khosa (supra)). RIGHTS OF PARTIES A question that invariably arises is whether the rights inter-parties can be taken away by retrospective law by use of non-abstente provision. Incidentally, can such non-abstante law bars remedy to a party to enforce right declared by Court? inter parties. The constitutional Generally, the legislature cannot take away the benefits accrued limitation of judicial decision retrospective denial of rights inter parties under decision is again a gray area. Constitutional law in the Court litigation is not about general principles, nor a matter of academic deliberation. Constitutional law in the Court battle is about focussed and pointed applied theory relevant to the case tested. As legislature cannot be expected to make a law to meet all and sundry situations, the constitutional Court cannot stick to singular constitutional test to meet all situations. Depending on the situation the principle also varies. instance, doctrine of stare decisis does not in general apply to For constitutional Court and a bench of larger strength may overrule earlier ratio decidendi adopting a new and liberal or rigorous interpretative test or approach. In three classes of cases, the legislature can nullify the rights declared under Judgment inter parties, including the writs, orders or directions issued by Supreme Court or a High Court. First category of cases is in relation to validating laws. The principle which would justify these laws is that the legislature has ancillary and incidental power to validate what is declared invalid by the Courts. Orient Paper Mills Limited v State of Orissa[42], Jaora Sugar Mills Limited v State of Madhya Pradesh[43], Sri Prithvi Cotton Mills Limited, A.B.Abdul Kadir v State of Kerala[44] and I.N.Saksena deal with this aspect. So as not to burden this Judgment with detailed analysis of all these Judgments, we may refer only to two of them. I n Abdul Kadir (supra), a Constitution Bench considered the constitutional validity of Kerala Luxury Tax and Tobacco (Validation) Act, 1964. The appellant; a tobacco merchant - paid licence fee under Cochin Tobacco Act and Travancore Tobacco Act filed writ petitions in Kerala High Court for refund of licence fee after two Acts were repealed. High Court dismissed the writ petitions holding that the Rules governing the levy of licence fee are valid under Entry 62 of the List II of Seventh Schedule of Constitution of India. The Supreme Court agreed with licencees and held the enabling Rules were invalid ab initio. Having failed to get refund of licence fee, appellants filed writ petitions. While the same was pending, Governor promulgated the Ordinance which became the Act validating the licence fee already collected. Section 5 thereof validated the collection of licence fee from 1950 to 1957. It was unsuccessfully challenged in the High Court. Before the Supreme Court, two questions were raised with regard to legislative competence and retrospectivity of the Act. On the second aspect, Supreme Court held that if the legislature has competence to make a law, even if it is retrospective in operation, a validating law does not suffer from any infirmity. The relevant observations are as follows. (para 25 of SCC). As regards the power of the legislature to give retrospective operation to a tax legislation, we may also refer to the case of Ramakrishna v State of Bihar (AIR 1963 SC 1667) wherein it was held that where the legislature can make a valid law, it can provide not only for the prospective operation of the material provisions of the said law but can also provide for the retrospective operation of the said provisions. The legislative power was held to include the subsidiary or the auxiliary power to validate law which had been found to be invalid. It was also observed that in judging the reasonableness of the retrospective operation of law for the purpose of Article 304(b), the test of length of time covered by the retrospective operation could not by itself be treated as decisive. Again, in the case of Epari Chinna Krishna Moorthy, Proprietor, Epari Chinna Moorthy & Sons, Berhampur, Orissa v State of Orissa[45], the Constitution Bench of this Court repelled the argument that a legislation should be held to be invalid because its retrospective operation might operate harshly in some cases. (emphasis supplied) I.N.Saksena is a service law case decided by Constitution Bench. The facts therein are as follows. The appellant who joined as Subordinate Judge was promoted as District Judge in 1957. He was to retire at the age of 55 years as per FR 56. In the meanwhile, Government issued a Memorandum raising the age of compulsory retirement to 58 years subject to certain exceptions. As a result, FR 56 was also amended with effect from 01.03.1963. In September, 1963, the State passed an order retiring the appellant with effect from 31.12.1963. He challenged before High Court. The same was dismissed. On appeal, Supreme Court quashed the retirement order but before the decision of Supreme Court, the Governor promulgated Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 under proviso to Article 309 of Constitution of India and giving retrospective effect from 01.03.1963. Though the retirement age was raised to 58 years, the appointing authority was empowered to retire any public servant on attaining 55 years by giving three months notice. After the Judgment of Supreme court on 23.01.1967, the State promulgated an Ordinance validating retirement of certain Government servants including that of the appellant. It was made into an Act. Section 2(1) of the said Act gave retrospective effect to 1965 Rules. Section 5 validated compulsory retirements prior to 1965 Rules and also barred suit or proceedings for claiming payment towards arrears. High Court dismissed the writ petition. Before the Supreme Court inter alia it was contended that the legislation was intended to avoid financial burden to the State on account of its having to pay arrears of pensions to a large number of officers, who had been retired under the Official Memorandum which was treated to be a Rule. The submission was negatived by Supreme Court relying on State of Mysore v Padmanabhacharya[46], Hari Singh v Military Estate Officer[47] and Indira Nehru Gandhi and held as under. (para 32 of SCC) It is well settled that the entries in these legislative lists in Schedule VII are to be construed in their widest possible amplitude, and each general word used in such entries must be held to comprehend ancillary or subsidiary matters. Thus considered, it is clear that the scope of Entry 41 is wider than the matter of regulating the recruitment and conditions of service of public servants under Article 309. The area of legislative competence defined by Entry 41 is far more comprehensive than that covered by the proviso to Article 309. By virtue of Articles 246, 309 read with Entry 41 List II, therefore, the State Legislature had legislative competence not only to change the service conditions of State civil servants with retrospective effect but also to validate with retroactive force invalid executive orders retiring the servants, because such validating legislation must be regarded as subsidiary or ancillary to the power of legislation on the subject covered by Entry 41. (emphasis supplied) The two decisions referred to hereinabove were subsequently followed and relied on by Supreme Court in a number of decisions, viz., McDowell & Company v Commercial Tax Officer[48], Khandelwal Metal and Engineering Works v Union of India[49], Express Hotels (Private) Limited v State of Gujarat[50], Karnal Cooperative Farmers’ Society Limited (supra), Indian Aluminium Company (supra), State of Kerala v Madras Rubber Factory Limited[51], Satchindananda Misra v State of Orissa[52], Virender Singh Hooda and State Bank’s Staff Union (Madras Circle) v Union of India[53]. The second category of cases is dealing with the laws validating earlier enactments retrospectively. This is done to remove the defects in the original legislation and to bring out the true intention of legislature in making such law. This category of cases is fiscal legislation and even if the vested rights acquired pursuant to Judgments of the Courts are taken away, such legislation has been held to be within the legislative competence. Epari Chinna Krishna Moorthy (supra), Assistant Commissioner, Madras v Buckingham and Carnatic Company Limited[54], Krishnamurthi & Co., v State of Madras[55], Hiralal Rattanlal (supra) and Hindustan Machine Tools deal with this principle. In Buckingham and Carnatic Company (supra), Constitution Bench of Supreme Court quoted with approval the following passage from an article ‘Retroactive Legislation of USA’ by Charles B.Hochman. the retroactive during of such a defect It is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called ‘small repairs’. Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislature’s or administrator’s action had the effect it was intended to and could have had, no such right would have arisen. Thus, the interest administration of Government outweighs the individual’s interest in benefiting from the defect.... The Court has been extremely reluctant to override the legislative judgment as to the necessity for retrospective the paramount taxation, not only because of governmental interest in obtaining adequate revenues, but also because taxes are not in the nature of a penalty or a contractual obligation but rather a means of apportioning the costs of Government among those who benefit from it. Indeed, as early as 1935, one commentator observed that “arbitrary retroactivity” may continue ... to rear its head in tax briefs, but for practical purposes, in this field, it is as dead as wager of law. (Charles B. Hochman in 73 Harvard Law Review 692 at p. 705.) (emphasis supplied) The third category of cases deals with the laws removing the disqualification in election matters. In N.Ibomcha Singh v L.Chandramani Singh[56], the respondent was a speaker of Manipur Legislative Assembly. In the poll to Legislative Assembly, the respondent secured 5,033 votes. The appellant challenged the same before Gauhati High Court inter alia on the ground that being a Speaker of Assembly, the respondent is disqualified as he holds an Office of Profit in State Government. The election petition was dismissed by High Court. When the matter was pending before Supreme Court, Manipur Legislature (Removal of Disqualifications) (Amendment) Act, 1975 was enacted. This provided that the Speaker of Assembly shall not be disqualified from seeking election to the Assembly. The Act was given retrospective effect from 06.02.1973 whereas elections were held in February, 1974. Relying on the amending Act, Supreme Court observed that respondent therein cannot be held to be disqualified. VALIDITY OF SECTION 3 OF IMPUGNED ACT In the Rules made under the proviso to Article 309 of Constitution of India from 1962 namely Andhra Pradesh Educational Subordinate Service Rules, Grade-II Pandit posts are feeder category to Grade-I Pandit posts which is to be filled up by promotion from the former. The Rules made in 1962 with the said title from the beginning till they were amended from time to time maintained the distinction. The principle of equality under Articles 14 and 16(2) require that when two posts by reason of pay disparity and functional disparity are different, if in abstract one considers both the posts equal, it would be suspect of Article 14. Even the qualifications for both the posts are distinct. To be qualified for appointment as Grade-II Pandits, according to 1962 Rules, an Oriental title with or without Pandit training, preliminary examination of oriental title is required. Whereas for Grade-I Pandits, a B.A., degree with language concerned, or BOL or title in teaching degree of University are essential. The statutory rules were made in 1983, 1992, 1998 and 2005. In all these, the distinction is clearly maintained and Grade-II Pandit is feeder post to Grade-I Pandit. Therefore, treating both the categories for the purpose of pay scale would be constitutionally unjustified. How then both were seemingly treated alike? Here, it is necessary again to look to historical facts. In 1970 under the relevant rules, SGBT teachers (with matriculation and teachers training) and school assistants (with graduation and B.Ed., degree) apart from functional disparity had patent pay disparity. In Telangana Area, due to domicility requirements, there was a dearth of trained graduates in Science and Mathematics. The Director of Schools proposed to appoint untrained graduates (without B.Ed.,) with minimum pay of Rs.130/- with the other the proposal. Subsequently, admissible allowances. At that time, untrained graduates and non-graduates were appointed in humanities with a minimum pay of Rs.100/-. The Government accepted the policy was implemented in the entire State. As the benefit of minimum of Rs.130/- was extended only to Science and Mathematics Teacher, the Humanities teachers agitated the matter before the High Court. The High Court allowed the matters. As a result of which, the untrained graduates in Humanities were paid minimum pay of Rs.130/- as was admissible to B.Ed., Assistants. The Federation of Andhra Pradesh Teachers Organisations (FAPTO) agitated the matter for extending such benefits to language Pandits as well. The Minister for education convened the meeting of the officials of Government and FAPTO. On 07.03.1982, it was agreed in principle to give Grade-I scale to qualified Grade-II Pandits. Again two meetings were held on 14.07.1983 and 15.07.1983 in the chambers of Chief Secretary, Government of Andhra Pradesh, in the presence of Government Secretaries and delegation of FAPTO. In relation to extending Grade-I scales, decision was taken as follows. (a) Sanction of Grade-I scale of pay to the persons working in Grade-II posts having requisite qualifications personal scale. (b) This will be made applicable to all these persons working in Grade-II posts prior to 11-3-82. (c) The posts of Grade-II Pandits in High Schools held by qualified Grade-II Pandits will automatically be upgraded from the date of order as Grade-I posts. (d) The Grade-II Pandits working in Upper Primary Schools who possess the qualifications prescribed for Grade-I Pandits shall be given Grade-I scale as personal to them. (e) The Grade-II Pandits with personal Grade-I scale working in High Schools/Upper Primary Schools shall be absorbed in Grade-I vacancies arising in High Schools in future and the posts of Grade-I Pandits in High Schools should not be filled by promotion, direct recruitment till Grade-II Pandits with Grade-I personal scale are absorbed. (f) This benefit shall not be extended to persons recruited on or after 11-3-1982. (g) Separate qualifications shall be prescribed for Grade-I and Grade-II Pandits posts, the qualifications for Grade-I posts being higher than that of Grade-II posts. On a plain reading of the above agreed decisions, we may say that exercise was not in fact conferring Grade-I scale to Grade-II Pandits. It was only sanction Grade-I scale requisite qualifications as a personal scale subject to condition that the Grade-II post shall be upgraded automatically as Grade-I post. When a post is upgraded as Grade-I, it is trite, the person holding the upgraded Grade-I post must be to Grade-II Pandits having given only Grade-I scale and not Grade-II scale. This understanding of the actual decisions taken in the meeting of Government and FAPTO is necessary for appreciating G.O.Ms.No.330, which, indisputably, was issued pursuant to the decision referred to above. In G.O.Ms.No.330, the Government directed that the language Pandits with Grade-I qualifications, even if they are working in Grade-II, shall be allowed Grade-I scale. These orders of the Government shall have to be implemented following the instructions contained in paragraph 3(a)(b)(c) and (d) of G.O.Ms.No.330, which read as under. a) The posts of Grade-II Language Pandits in High Schools held by Pandits possessing Grade-I qualifications shall be upgraded as Grade-I Posts in the Scale of Rs.700- 1200 from the date of this order and the persons working in these posts shall be treated as Grade-I Pandits and their pay fixed under F.R.22(a)(ii) subject on the condition that the number of Grade-I posts be sanctioned as per the existing rules on the High Schools. Persons now working as Grade-I posts be sanctioned as per the existing rules on the High Schools. Persons now working as Grade-II Pandit in High Schools should be adjusted against eligible Grade-I Pandits posts as per the existing rules and allowed to Grade-I scale and for such other persons who cannot be adjusted against Grade-I Pandits posts be allowed the Grade-I scale as personal scale and such persons be promoted as envisaged in ‘c’ below. b) Grade-II Language Pandits working in Upper Primary schools and possessing Grade-I Language Pandit qualification shall be given Grade-I Language Pandit Scale (Rs.700-1200) fixed under F.R. 22 (a)(ii). This to Grade-I benefit shall not however be extended Language Pandits qualifications. c) The posts of Language Pandits Grade-I arising in high schools in future shall not be filled by promotion of Grade- Pandits II Pandits in High Schools or by direct recruitment till the Grade-II Pandits qualifications as personal to them in High Schools and Upper Primary Schools are absorbed in these Grade-I vacancies. possessing Grade-I d) The Grade-II Language Pandits who are given Grade-I Language Pandits scales as personal scale in Upper Primary Schools (vide (b) above) shall be absorbed in the vacancies of Grade-I Language Pandits posts arising in High Schools from 11.03.1982. In addition to the decision taken in the chambers of the Chief Secretary, the Government Order makes it clear that when Grade-II Pandit is given Grade-I scale, the pay shall be fixed under FR 22(a)(ii). There was stagnation in promotions for Grade-II Pandits even though they had acquired Grade-I qualifications. Most of them had crossed efficiency bar in the scale of pay. Even if they are allowed Grade-I scale of pay by upgrading Grade-II posts they held, there was no financial benefit to them. Therefore, the Government directed fixation of pay in the upgraded post in accordance with FR22. This makes it very clear that though the decision of the Government Order speaks of upgradation for the purpose of conferring higher scale of pay, it shall be treated as promotion. If the Government Order is understood as the allowing Grade-I scale of pay to every language Pandit ignoring the statutory distinction, certainly, the Government Order would be invalid. The Government Order allowed the benefit only to those Language Pandits Grade-II appointed prior to 12.03.1982. The cut off date in paragraph 3(b) of the Government Order was challenged in R.P.No.2158 of 1986. It was allowed on 17.08.1989 directing implementation of the policy without cut off date. Government took a decision to implement the same. When there were innumerable claims from Grade-II Pandits appointed long after issued G.O.Ms.No.176, dated 22.12.2000, G.O.Ms.330, Government cancelling G.O.Ms.No.330. Two reasons were given that when Grade-I scales were allowed to Grade-II Pandits, there was no financial benefit to them and that by reason of G.O.Ms.No.164, dated 01.06.1982, all the Language Pandits Grade-II were allowed financial benefit step by step after completion of 10,15 and 22 years of service. Therefore, the Government withdrew the benefits under G.O.Ms.No.330 as automatic advancement scheme would confer financial benefits on Language Pandits on par with Government employees. This was challenged unsuccessfully before APAT in O.A.No.377 of 2001, which was dismissed on 13.06.2002. As noticed earlier, the Division Bench in P.C.S.Naidu set aside O.A.No.377 of 2001. Thinking that the entire basis for the pre G.O.Ms.No.176 litigation in the tribunal and post G.O.Ms.No.176 litigation in the tribunal and High Court is G.O.Ms.No.330, the Government chose legislative route to remove the basis. There cannot be any doubt that if G.O.Ms.No.330 is not in existence, the Language Pandits Grade-II (with higher qualifications) would not have got the benefit of upgraded Grade-I post with scale of pay attached to it. They would have got the benefit of automatic advancement scheme unveiled in G.O.Ms.No.164, dated 01.06.1982. The long preamble to the impugned Act while referring to historical facts as above also mentions the implementation of G.O.Ms.No.330 would involve financial commitment of Rs.394 crores to be paid as arrears to 56,750 Grade-II language Pandits and there will be a recurring annual expenditure of Rs.63 crores. All these due to a Government Order which was invalid because it was understood as conferring the same scale of pay for two different categories of language Pandits. It is no doubt true that any State action – legislative or executive; does not by itself is rendered void or invalid unless it is so declared by competent Court. (See Shiv Chander Kapoor v Amar Bose[57] and State of Punjab v Gurudev Singh[58]). The invalidity of the G.O.Ms.No.330 was never raised before any Court or tribunal. Indeed it could not have been. The whole litigation was to extend the benefit of said G.O., though the Government intended otherwise. Therefore, the way G.O., was construed and implemented by the Government was certainly invalid and therefore, the Government thought it fit to withdraw the G.O., by issuing another order in December, 2000. The tribunal upheld the G.O.Ms.No.176 which was overturned in P.C.S.Naidu. If G.O.Ms.No.330 has not been there, the things would have been as regulated by statutory rules made in 1962 (subsequently amended from time to time). Therefore, the impugned Act is neither unconstitutional nor ultra vires. Articles 14, 16(2), the proviso to Article 309 and entry 41 of List II of Seventh Schedule of Constitution are the provisions to which legislative power of Andhra Pradesh Assembly can be traced. When it is conceded that an Act is legislatively competent, it satisfies the test of primary judicial review. in view of the constitutional Learned senior counsel made a novel argument. According to them, the impugned Act is not a validating legislation and it is intended to nullify the Judgment of High Court in P.C.S.Naidu. Yet another submission is that though G.O.Ms.No.176 was an executive order cancelling G.O.Ms.No.330, it is deemed to be law and when it is annulled by the Court in P.C.S.Naidu, the same law cannot be enacted by the legislature. Both these submissions theory and binding are unacceptable precedents. The principles relevant and applicable to these cases have been summarised by us. If a legislation is declared ultra vires and unenforceable by the Court, due to some defects, the legislature is always competent to re-enact the law after removing the defects attracting invalidity and also removing the basis which rendered it invalid in Court’s view. This is well accepted in all jurisdictions of the world. The basic principle is that the legislative supremacy to make laws within the sphere of competence cannot be whittled down as it would undermine the People’s Will. When a legislative enactment is declared invalid, can it be re-enacted in a different form by removing the defects? The legislature is always competent to remove the basis introduced by way of executive order by enacting legislation. Indeed, an executive order can always be withdrawn by any executive order and legislation may not always be necessary. But having regard to past litigation and having realized that executive order forms the basis for perpetuation of unconstitutional claims of rights, the State Legislature can always pass an Act declaring the service conditions in relation to a particular public service under the State. The impugned Act by Section 3 only declares that the Language Pandits Grade-II shall draw only in the scale of pay attached to the State passed even if it is possessed or acquired qualification prescribed for the post of Language Pandits Grade-I. The legislative emphasis in Section 3; in our view - is necessitated by G.O.Ms.No.330 which as noticed supra, was never intended to confer a scale of Grade-I to Grade-II Pandits but over a period of time came to be construed by the Government itself as if it was to give Grade-I scale to Grade-II Pandits. Therefore, Section 3 does not suffer from any infirmity. It is a validating Act and Andhra Pradesh legislature has competence to enact the law under the constitutional provisions referred to hereinabove. The submission that G.O.Ms.No.176 whereunder the benefits under G.O.Ms.No.330 were withdrawn is deemed to be law, is an argument to be noticed for the purpose of rejection only. It is nobody’s case before the tribunal or before this Court in P.C.S.Naidu. G.O.Ms.No.330 was the result of discussions and deliberations between the Government employees and it is an executive order. Even the Minutes of these meetings do not indicate that the Government have intended to make a law either in relation to the policy containing G.O.Ms.No.330 or in relation to G.O.Ms.No.176. In conclusion on the validity of Section 3 of the impugned Act we hold that the basis for Grade-II Pandits (with Grade-I qualifications) to claim the scales of pay attached to post of Grade-I Pandits is G.O.Ms.No.330, dated 10.08.1993. If the legislature intervenes and takes away the basis by a declaration, the same does not amount to usurpation of judicial power. (See M.M.Pathak). The context in which this Court in P.C.S.Naidu did not agree with the Full Bench of APAT, upholding G.O.Ms.No.176, dated 22.12.2000 cancelling G.O.Ms.No.330 cannot be missed nor misconstrued. In P.C.S.Naidu, to our mind, because G.O.Ms.No.330 was in force prior to If G.O.Ms.No.176, G.O.Ms.No.330 was not there, there would not have been occasion for a Tribunal or for any constitutional Court to confer the benefit on a class of employees of a higher scale of pay than what is fixed for the post. Therefore, the argument that the impugned legislation amounts to usurpation of judicial power is unacceptable nor it can be said to violate Articles 14 and 16 of Constitution of India. this Court set aside the order of the Tribunal. VALIDITY OF SECTION 4 OF IMPUGNED ACT As per Section 1(2), the impugned Act shall be deemed to have come into force on 10.08.1983. G.O.Ms.No.330 was issued on that day. The legislative intention is clear. They do not want Grade-II Pandits to claim any benefits that might have accrued under G.O.Ms.No.330. So as to extinguish the right to enforce such accrued rights either by reason of Government Order or Court Judgment, the legislature enacted Section 4. The challenge to Section 4 read with Section 1(2) is challenge to retrospectivity of the statute. The petitioners contend that retrospective enforcement of the impugned legislation is unconstitutional, arbitrary and unreasonable. They rely on the decisions of Supreme Court and we may refer to some of them. In Mathuradas (supra), a question arose as to whether Panchayat employees appointed under Gujarat Panchayat Act, 1961 holding civil posts. The Constitution Bench of Supreme Court held that Panchayat service is civil service of the State. But they cannot be treated as Government servants. I n Raman Lal Keshav Lal Soni, Supreme Court reviewed Mathuradas. The view that Panchayat employees were not Government servants was not accepted and it was held that such employees are Government servants. The Supreme Court also considered the question as to whether the status of Panchayat employees as Government servants could be extinguished by amendment to the Principal Act. It was held as long as the posts were not abolished and their services were not terminated in accordance with Article 311 of Constitution of India, the status of Panchayat employees as Government servants could not be extinguished as it was not permissible under Article 14 of Constitution of India. In that context, the following observations were made. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the dos and the Constitution, neither prospective nor don’ts of retrospective to contravene laws can be made so as Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today’s rights and not yesterday’s. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history. … … A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. (emphasis supplied) In Ex.Captain K.C.Arora, the benefit of reckoning military service was given to Ex-servicemen Category Assistant Engineers by Rules made under Article 309 of Constitution of India was taken away by amendment. The challenge failed before the High Court. The Supreme Court, however, relying on Ramanlal Keshav Lal Soni came to a conclusion that though the Rules can be made retrospectively, the rights accrued and vested prior to granting the Rules cannot be taken away. The retrospectivity of a Statute was considered as follows. they can It may be pointed out at the very outset that the Parliament as also the State Legislature have plenary powers to legislate within the field of legislation committed to them and subject to certain constitutional restrictions legislate prospectively as well as retrospectively. It is, however, a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect. But the rule in general is applicable where the object of the statute is to affect the vested rights or to impose new burden or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to effect existing rights, it is deemed to be prospective only. Provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. (emphasis supplied) In Hindustan Gum & Chemicals Limited v State of Haryana[59], the appellant company challenged collection of octroi in respect of guar imported by them at their factor in Biwani. Initially their factory was situated outside the Municipal limits but by notification dated 10.8.1965 the area within which the factory of the appellant was situated was included within the municipality of Bhiwani. The appellant questioned levy unsuccessfully before the High Court of Punjab and Haryana. After obtaining leave under Article 133(1)(a) of Constitution of India, the appeal was filed. In the mean while in respect of Sonepat levy of octroi, there was similar challenge. The High Court dismissed the writ petitions. Appeal was preferred before the Supreme Court. In Atlas Cycle Industries Limited v State of Haryana[60], the Supreme Court reversed the judgment of High Court holding that it was incompetent to levy and collect octroi under Section 5(4) of Punjab Municipality Act, 1911. When the appeal of Hindustan Gum & Chemicals Limited (supra) was pending, State Legislature enacted Punjab Municipal (Haryana Amendment and Validation) Act. Section 4 of the Amending Act while validating levy and collection of octroi retrospectively barred suit for refund of tax, also barred enforcement of decree. Having regard to this, Supreme Court dismissed the appeal observing as under. In the instant case the only ground on which this Court had found the levy of octroi in the extended area of a municipality to be invalid was that the provisions of section 5(4) of the Act were inadequate in the absence of a reference to the notifications issued under the Act also in that sub-section. By the Amending Act the word 'notification' had been inserted in sub section (4) of section 5 of the Act with re respective effect. If the expression 'notification' had been there in that sub-section on the date on which the municipal limits were extended, this Court would have upheld the levy and collection of control in its judgment in Atlas Cycle Industries Ltd. case (supra). This Court found that sub- section (4) of section 5 which did not contain the word 'notification' was inadequate for the purpose of upholding the levy and collection of octroi in the extended local area. Since the word 'notification' has now been inserted in section 5(4) of the Act with retrospective effect, the basis on which the said decision was rendered has been removed because the deficiency in section 5(4) noticed by this Court has been made good and the levy and collection of octroi have also been validated. The Amending Act satisfies the tests laid down by this Court in the decision in Shri Prithvi Cotton Mill's case (supra) for overcoming an earlier decision of a court in such circumstances. The Amending Act thus neutralises the effect of the decision in the case of Atlas Cycle Industries Ltd. case (supra) which can no longer be relied upon by the appellant after the amendment of the Act as stated above. In Arooran Sugars Limited, Supreme Court reiterated the principle that the legislature can remove the basis which weighed with the Court while rendering a statute invalid and that such re-enactment can take away the rights prospectively if it can satisfy the test of Article 14 of Constitution of India. We may excerpt the following passage. It need not be impressed that whenever any Act or amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are bound to be affected one way or the other. In every case, it cannot be urged that the exercise by the legislature while introducing a new provision or deleting an existing provision with retrospective effect per se shall be violative of Article 14 of the Constitution. If that stand is accepted, then the necessary corollary shall be that legislature has no power to legislate retrospectively, because in that event a vested right is effected; of course, in special situation this Court has held that such exercise was violative of Article 14 of the Constitution. (emphasis supplied) I n State of Maharashtra v Tanuja (supra), the Supreme Court considered the question whether the executive of legislature can overrule a judgment of the Court and if so to what extent. In Vijaya v State of Maharashtra[61], the Bombay High Court had held that persons belonging to “Bawa” community who migrated from Sindh acquired the synonym of the community known as “Gosavi”, which was known as nomadic tribe in the presidency of Bombay. After the judgment, the Government passed resolution on 01.4.1987 declaring that, “Bawa is not equivalent to Gosavi”. The Caste Scrutiny Committee passed an order declaring that respondent Tanuja was not entitled to claim benefit of reservation for the nomadic tribe in the State of Maharashtra. She challenged in the High Court. A Full Bench of Bombay High Court considered the question and set aside the resolution, inter alia, on the ground that the Government Committee’s resolution dated 01.4.1987 was issued to set at naught or to get over the decision in Vijaya (supra). The same was confirmed by the Supreme Court. The Supreme Court while agreeing with Full Bench of Bombay High Court held that “… … if the executive or the legislature wants to render a judicial decision ineffective, it can only do so by removing or altering or neutralizing the legal basis of the judgment, which is sought to be made ineffective and that neither the legislature nor the executive has the power of simply declaring the earlier decisions of the Courts as invalid or not binding.” The Supreme Court also indicated that if there is any fresh material or a fresh report from competent bodies, the State can alter or neutralize the legal basis of a judgment of the Court. B.Krishna Bhat (supra) is a case of unconstitutional levy of tax on the owners of lands and buildings by Bangalore City Corporation. In the challenge before the High Court the contention was that except the power to levy and collect betterment tax, there was no such power vested in the Corporation. The High Court accepted the contention. Thereafter, Karnataka State Legislature enacted Bangalore Development Authority (Amendment) Act, 1993 incorporating Sections 28-A, 28-B and 28-C empowering Bangalore Development Authority (BDA) to levy and collect property tax in the same manner and at the same rate as provided under the Corporation Act. Krishna Bhat and others unsuccessfully challenged the same before the High Court. Before the Supreme Court, it was contended that as the tax can be collected only when civil amenities are provided, the tax could not have been validated. The Supreme Court upheld Sections 28- B and 28-C but declared ultra vires Section 7 of Amending Act validating collection of property tax by BDA before the introduction of amendment. The relevant observations are as follows. … … it is seen that the invalidity pointed out by the High Court about the lack of services rendered at the relevant point of time is an invalidity which was not capable of being removed to justify the levy of tax by an Amending Act and the Legislature could not have either ignored this finding of fact by the High Court or overruled the same. Therefore, in our opinion, in respect of the tax collected for the period before the date of the Amendment there could have been no validation of such collection. Hence, the Amending Act so far as it validates the collection of property tax by the BDA, cannot be sustained for a period prior to the date of the Amending Act. … … … Therefore, Section 7 of the Amending Act so far as it validates collection of property tax made by the BDA prior to the introduction of Section 28B has to be declared as invalid and beyond the legislative power. Tulsi Das as noticed, is a case where adhoc non-graduate teachers in Humanities claimed pay parity with similar adhoc teachers of Science and Mathematics. It was a case where ex facie discrimination was set right by the High Court and APAT but was sought to be nullified by a legislative intervention. Therefore, Supreme Court held that the rights accrued in accordance with law cannot be brushed aside. There are sufficient guidelines in the Judgment to the effect that if the rights are accrued or claimed otherwise than in accordance with law, the legislature can divest them retrospectively. Can a validating law made retrospectively be treated arbitrary for the reason that it takes away the accrued rights. The answer must be in the negative. In Virender Singh Hooda, Supreme Court considered this aspect of the matter with reference to various precedents and held as under (para 67): The result of the aforesaid discussions is that retrospectivity in the Act cannot be held to be ultra vires except to a limited extent which we will presently indicate. It is not a case of usurpation of judicial power by the Legislature. The Legislature has removed the basis of the decision in Hooda and Sandeep Singh's cases by repealing the circulars. The Act is also not violative of Articles 14 and 16 of the Constitution of India. The candidates have right to posts that are advertised and not the one which arise later for which a separate advertisement is issued. A valid law, retrospective or prospective, enacted by Legislature cannot be declared ultra vires on the ground that it would nullify the benefit which otherwise would have been available as a result of applicability and interpretation placed by a superior Court. A mandamus issued can be nullified by the Legislature so long as the law enacted by it does not contravene constitutional provisions and usurp the judicial power and only removes the basis of the issue of the mandamus. In Bihar Pensioners Samaj (supra), by notification dated 19.04.1990 the pension was revised giving financial benefit with effect from 01.03.1989. In effect, denying the benefit to those pensioners who retired prior to the said cut-off date, The Division Bench of Patna High Court upheld the power to fix cut off date but remitted the matter to Government for reconsideration regarding the cut off date. Special Leave Petition against this Division Bench was dismissed and Patna High Court in other case followed its own decision. Thereafter, Bihar State Government Employees Revision of Pension, Family Pension and Death-cum-Retirement Gratuity (Validation and Enforcement) Act, 2001 was enacted validating the revision of pension as per earlier notification, which was struck down by High Court. This Act was challenged and the High Court declared the same ultra vires on the ground that the said Act was intended to side track and avoid earlier decision of the High Court. The Supreme Court accepted the appeal by State of Bihar and it was held (paras 16 and 17 of SCC): It is always open to the legislature to alter the law retrospectively as long as the very premise on which the earlier judgment declared a certain action as invalid is removed. The situation would be one of a fundamental change in the circumstances and such a validating Act was not open to challenge on the ground that it amounted to usurpation of judicial powers. …We think that the contention is well founded. The only ground on which Article 14 has been put forward by the learned counsel for the respondent is that the fixation of the cut-off date for payment of the revised benefits under the two notifications concerned was arbitrary and it resulted in denying arrears of payments to certain sections of the employees. This argument is no longer res integra. It has been held in a catena of judgments that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration. (emphasis supplied) In State of Kerala v Peoples Union for Civil Liberties[62], Supreme Court considered the constitutional validity of Kerala Restriction on Transfer by Restoration of Lands to Scheduled Tribes Act 1999. High Court of Kerala declared certain provisions including Section 5 thereof as arbitrary and ultra vires. Section 5 declared the transfer of agricultural land by member of Scheduled Tribe to non Scheduled Tribe person after 1.1.1960 invalid and permitted those non tribals who purchased the land prior to that date to retain only 2 hectares. The said Act repealed 1975 Act under which vested rights were claimed by tribals. The State contended that members of Scheduled Tribes have no vested right and intention of the enactment being clear, the question of applicability of Article 14 would not arise. Dealing with this aspect Supreme Court observed as under (paras 88 and 89 of SCC) When a person acquires an indefeasible right, he can be deprived therefrom only by taking recourse to the doctrine of eminent domain. If a person is sought to be deprived of an indefeasible right acquired by him, he should be paid an amount of compensation. In a case of this nature, therefore, where an amount of compensation has not actually been tendered, the vendees of the land could not be deprived of their right to be dispossessed. In that view of the matter, a distinction must be made between a case where an amount of compensation has been paid and in a case where it has not been. … If a vested right has not been taken away, the question of applicability of Article 14 of the Constitution of India would not arise. The High Court, however, proceeded to apply Article 14 of the Constitution of India on the premise that the provisions of the 1999 Act clearly seek to destroy the right conferred on Scheduled Area by Act 31 of 1975. The approach of the High Court being not correct, the same cannot be sustained. From these cases, the following principles would emerge. (i) A law made retrospectively generally and a validating law specially can always take away the accrued and vested rights and in every case it cannot be said that such law violates Articles 14 and 16 of Constitution of India. (ii) A law made with retrospective effect cannot be declared ultra vires only on the ground that it would nullify the benefit which would otherwise have been available by reason of Court Judgment. Such law does not amount to encroachment on judicial power but it is a law intended to nullify the effect of judicial decision by changing the law retrospectively. (iii) A retrospective validating law can take away the accrued or acquired rights of the parties, if such a provision is constitutionally sustainable. In other words, if the right accrued or acquired is not constitutionally sustainable or justifiable, there can be no claim for such rights. In either case, the burden lies on the petitioners to show that the removal or alteration or neutralization of rights is unconstitutional violating the fundamental rights. (iv) If a law made retrospectively is grossly inequitable or arbitrary, the Court can mould the relief restricting retention of the benefit to ‘exercised and enforced rights’, only to those who already enjoyed such right. All the applicants who approached APAT were admittedly appointed as Language Pandits Grade-II after 11.03.1982. Language Pandits Grade-II who were appointed prior to 11.03.1982 did not get higher scale of pay automatically. The posts they were holding as on the date of coming into force of G.O.Ms.No.330 were upgraded and the corresponding number of Grade-I posts from the date of G.O., and those persons who were holding the posts were given the benefit of higher scale of pay duly fixing the same in accordance with fundamental rules. As per FR 22(a)(ii), a person appointed to new post not involving any formal assumption, he will draw the initial pay which is equal to the substantive pay in the old post plus such personal pay equal to the difference to the next stage of scale in the new post, till he receives an increment in the time scale of old post. Technically, when a post is upgraded and the incumbent is given benefit of FR 22(a)(ii), there is a promotion to the higher post though there may not be assumption of change in upgraded post. This presupposes that the person holds necessary qualifications when such upgradation takes place. If this benefit is extended to every Language Pandit Grade-II irrespective of the Government Order for upgradation, it would certainly amount to treating unequals as equals in the matter of scale of pay and would be unconstitutional violating Articles 14 and 16 of Constitution of India. Such unconstitutional eventuality cannot be perpetuated even if APAT and this Court on principles of equity had extended the benefit, directing to ignore the cut off date. Equity in auction is not always equality compliant, nor equality is ensured by equity; for equity is good but equality is best. Employment under the State is not a contract. It is a status conferred and protected by Constitution of India. Public employment is a nation’s wealth as held by Supreme Court in State of Maharashtra v Chandrabhan[63]. The enjoyment of such nation’s wealth is very well protected by the constitution. The very constitutional scheme of equality and equal opportunity cannot be ignored nor public servants claim the benefit far exceeding constitutionally permissible benefits. State as a repository and trustee of the power under the Constitution cannot conceive and distribute the benefits and largess ignoring the great principle of equality either in the matter of promulgating conditions of service, prescribing qualifications for appointment, fixing scales of pay to different categories of public servants and in the matter of pensions. Fixation of irrationally high qualifications for the posts have been faulted by the Supreme Court as violating Articles 14, 16 and 21 and principle of social justice (See T.R.Kothandaraman v T.N.Water Supply & Drainage BD[64]). The fixation of different scales of pay to different categories of employees based on qualifications and prescription of different qualifications and length of service for promotion to next higher category have been upheld as constitutionally permissible (See C.Girijambal v Government of Andhra Pradesh[65] and State of Punjab v Surjit Singh[66]). I n Secretary, State of Karnataka v Umadevi (3)[67], Constitution Bench of the Supreme Court observed that, “public employment .. has to be set down by the Constitution and the laws made thereunder .. (and) equality of opportunity is the hallmark and the constitution has provided also for affirmative action to ensure that unequals are not treated as equals”. The question before Supreme Court was whether adhoc, daily wage and temporary employees with long years of service, can seek regularization through Court intervention ignoring statutory procedure for selection process. The Constitution Bench negatived the plea of ‘individualized justice’ and untempered equity and held that, “adherence to rule of equality in public employment relevant feature of our Constitution”. The is a basic observations are as follows. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. When a person is appointed otherwise than in accordance with relevant service rules, can such person claim legitimate expectation or protection of Articles 14 and 16 of Constitution of India. The Supreme Court in Umadevi (3) answered the issue in the negative and observed as under. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, the Public Service in consultation with Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. … No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. Indisputably in August, 1983, when the Government issued orders upgrading Grade-II post to Grade-I and allowing incumbent Grade-II Pandits to avail Grade-I scale, it was restricted to those Grade-II Pandits who had acquired prescribed qualifications as on 11.03.1982. As long as the G.O.Ms.No.330 was in force, all the initial beneficiaries availed the benefit. After the order in Tajuddin (supra) and other such orders, some Grade-II Pandits who acquired Grade-I qualifications after 11.3.1982 also availed the benefit. In view of the various authorities discussed hereinabove, those who availed the benefit of Grade-I Pandit scale of pay, even though they were appointed to the Grade-II Pandit posts cannot be said to have acquired indefeasible vested rights. If the law which removes the basis which enabled directly or indirectly the availment of the benefit, it must be held that the legislation was removing the defect. Any right which had arisen out of a defect cannot be vested right to seek windfall. It may be reiterated that in Buckingham and Carnatic Company Limited, Supreme Court quoted with approval Charles B.Hochman who said that, “the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called ‘small repairs’. More over, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislatures’ or administrators’ action had the effect it was intended to and could have had, no such right would have arisen”. Further as held by Supreme Court in Arooran Sugars Limited (which distinguished and explained M.M.Pathak), “whenever any Act or amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are bound to be affected one way or other. In every case it cannot be urged that the exercise by Legislature .. per se shall be violative of Article 14 of the Constitution.” In the process of declaring that Grade-II Pandits shall draw a scale of pay attached to the said post even if they possessed or later acquired the qualifications prescribed for Grade-I Pandits, if some of the rights are affected, it would not violate equality clause. Section 4 of the impugned Act bars a claim in a Court or enforcement of Court Orders contrary to Section 3 of the impugned Act. The same does not suffer from any arbitrariness or irrationality. When the very purpose of legislation is to deny the benefit of G.O.Ms.No.330, it is not permissible for the Court to ignore the same and determine the merit of the Legislation by entering into the question whether Legislature had sufficient material before it. The unusually lengthy preamble and the statement of objects and reasons of the Legislature would show that the State did not take action in a hasty and half hearted manner. That after the issue of G.O.Ms.No.164, Finance & Planning, dated 01.06.1982, the automatic advance scheme is applicable to Grade-II Pandits with long service, and if G.O.Ms.No.330 is enforced, they would get double benefit, was one of the valid considerations by the Legislature. Legislature was also aware that the conferment of Grade-I scale to Grade-II Pandits would be contrary to all norms and would be mockery of selections besides violating fundamental right. The State’s resources are to be distributed among competing sections of society with great deal of caution, equity and accountability and that giving the higher scale of pay to a person holding lower post would give possibility of others demanding higher scales of pay. These are also the relevant factors which weighed with the Legislation. Above all, the continued enforcement of G.O.Ms.No.330 would cause immense financial burden – Rs.354 crores as one time expenditure and Rs.63 crores as annual recurring expenditure – is a valid consideration for legislation to bar enforcement of any rights claimed under an administrative action which is nullified by legislation. Such plea has been upheld by Supreme Court in I.N.Saksena when the Supreme Court negatived the plea that the legislation impugned therein was intended to avoid financial burden of State on account of its having to pay arrears. Therefore, viewed from any angle Section 4 of the impugned Act is not afflicted by any constitutional vice. In I.N.Saksena and Hindustan Gum, the Supreme Court upheld provisions which are similar to Section 4 of the impugned Act in these writ petitions. For ready reference, we may extract the provisions for comparison to show that merely because Section 4 takes away the right to claim Grade-I scale and the right to enforce Court Order, it cannot be declared unconstitutional. 5 Section of M.P. C o m p u l s o r y Retirement Act, 1967 considered in I.N.Saksena v State of M.P (AIR 1976 SC 2250). Section 4 of Punjab M u n i c i p a l (Haryana Amendment and Valida tion) Act, 1971 considered in Hindustan Gum v SoHar ((1985) 4 SCC 124) Section 4 of the Andhra Pradesh Language Pandits Grade-II Scale of Pay) Act, 2004 (Impugned in these writ petitions) (Regulation 1 2 3 validly serving retired

5. Notwithstanding judgment decree or order of any Court, all Government servants connection with the affairs of State retired compulsorily to have been purported retired compulsorily accordance memorandum as replaced by the Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 referred to in Section 2 during the period beginning with 1st March, 1965 and ending on 15-7- 1965 shall be and shall always be deemed to have accordance conditions service applicable to them at the rel ev ant time as provisions of Sections 2 and 3 had been in force at all material times when such retirement was ordered, and accordingly: (a) all notices served on such Government Servants after their completion of age 55 years shall be deemed to be and to have been issued in accordance with governing their conditions of service; (b) proceedings maintained or continued in any Court for any amount whatsoever as a payment towards salary for the period beginning with the date on which a Government servant compulsorily retired and ending on the date of his attainment of age 58 years. ( c ) no court shall enforce any decree or order directing the payment of any such amount referred to in clause (b) above. decree

4. Abatement of Claims: Notwithstanding Government Order, judgement, order of any Court or Tribunal, the claims of Language Pandits Grade- the pay II Language Pandits Grade-I stand extinguished from commencement of this Act and accordingly; for allowing (1) The orders issued the Government allowing Language Pandits Grade-II the Scale of Pay attached to Grade- I post for possessing requisite qualification prescribed for the post of Language Pandits Grade-I cancelled. (2) No suit or other proc eedings shall be instituted, maintained or continued in any Court, Tribunal or other Authority Pandits Language Grade-II against Government or any person or Authority whatsoever for fixation of pay in the scale of L a n g u a g e Pandits Grade-I. (3) No enforce any decree or order directing the grant of Language Pandits Grade-I L a n g u a g e Pandits Grade-II. before before Validation: (1) 4. Notwithstanding judgment, decree or order of any Court or other authority the contrary..........any levied, charged or octroi collected or purporting have been levied, charged or collected commencement of this Act and any action taken or thing commencement in relation to assessment, reassessment, collection the principal provisions of Act and rules made thereunder shall be deemed to be as valid and effective as if such assessment, re- assessment, collection or action or thing had been made, taken or done under the principal Act as amended by this Act and the rules and bye-laws made thereunder and accordingly - (a) All acts, proceedings or things done or taken by the Committees officers of the Committee or by any other authority connection re- assessment, assessment, tax or collection of such octroi shall, for all purposes, be deemed to be and to have always been done or taken in accordance with the law; (b) proceedings maintained or continued in any Court or before any authority the refund of any such tax or octroi; and (c) no Court shall enforce any decree or order directing the refund of any such tax or octroi. Section 4 of the impugned Act extinguishes the claims of Language Pandits Grade-II for Grade-I scales by (i) cancelling all the Government Orders allowing Grade-I scales to Grade-II Pandits; (ii) barring and abating suits or other proceedings against the Government for fixation of Grade-I scales to Grade-II Pandits; and (iii) barring enforcement of decrees or orders directing the grant of Grade-I scale to Grade-II Pandits. The Act is silent as to the amounts already paid to some of the Grade-II Pandits with Grade-I qualifications who were already paid the amounts pursuant to the orders of the APAT, High Court or Government itself. The silence in the statute must ordinarily be understood as the intention of the Legislature not to recover the amount already paid to those category of Grade-II Pandits. Even otherwise, while exercising the Mandamus jurisdiction the Constitution Court can always exercise equity jurisdiction and prohibit the recovery of amount already paid to those category of Grade-II Pandits who were given the benefit of G.O.Ms.No.330, dated 10.08.1983. In the background of the case, we are inclined to exercise our equity jurisdiction and direct the Government not to recover any amount actually paid to any of the Language Pandits Grade-II who were given benefit of Scale of Pay of Grade-I. In view of the above analysis, reasons and conclusions, we hold that (i) The impugned Act is constitutionally valid and does not violate Articles 14 and 16 of Constitution; (ii) The impugned Act does not amount to usurpation of judicial powers of Legislature. It only removed the basis for the decision of this Court in P.C.S.Naidu v Correspondent, SSRSO Upper Primary School, and it is not ultra vires; (iii) The impugned Act is silent with regard to recovery of the amounts already paid to those Grade-II Pandits who availed the benefit under G.O.Ms.No.330, dated 10.08.1983 and hence the Government shall not recover any amount actually and already paid to any of the Language Pandits Grade-II who were given benefit of Scale of Pay of Grade-I. The writ petitions stand disposed of accordingly in the aforesaid terms without any order as to costs. _______________ (V.V.S.RAO, J) _________________ (N.V.RAMANA, J) ____________________ (P.S.NARAYANA, J)

16.04.2010 Pln Note: LR copy be marked. (By order) JUDGMENT:- (Per Justice P.S.Narayana) Having carefully gone through the Judgment of the learned brother Sri Justice V.V.S.Rao, though I agree with the direction that the Government shall not recover any amount actually and already paid to any of the Language Pandits Grade-II, who were given the benefit of Scale of Pay of Grade-I, I express my inability to agree in toto with the other reasons relating to the constitutional validity of the Legislation under challenge and the view that the Legislation under challenge does not amount to usurpation of judicial powers of the Legislature and that it only removed the basis for the decision of this Court in P.C.S.Naidu v. Correspondent, SSRSO Upper Primary School and it is not ultra-vires, hence I do record the under- noted reasons.

2. The presumption is in favour of the constitutionality of a statute. It is for those who challenge the constitutional validity of a particular statute to establish how the same is bad and on what grounds the said statute or the provisions of the statute are liable to be struck down.

3. A binding precedent of the Apex Court which is direct on the point cannot be ignored on the strength of certain other decisions, may be of Larger Benches, if those decisions do not touch the point in controversy directly. This is the settled principle of law relating to the applicability of the Precedent Law.

4. It is needless to say that judicial discipline requires the binding precedent to be applied in its true letter and spirit irrespective of the burden to the public exchequer. Removing the basis of the Judgment in retrospectivity may have to be examined with greater care and caution,.lest, the judicial verdict may be annulled by the Legislative device without any limits whatsoever which may amount to the Legislative wing encroaching upon the power of judicial wing, impermissible limits. This danger to be kept in mind always by the Courts of Law especially in the light of the concept of separation of powers as envisaged by our constitutional framework.

5. There cannot be any doubt whatsoever that the basis of the decision of a Court can be removed by Legislative device but however the Courts are expected to be cautious while examining the constitutionality of such Legislation, though normally the presumption always favour of constitutionality of a Legislation being valid unless otherwise established.

6. A Legislative measure with a condition of retrospective operation in the light of the judicial verdict, cannot get the approval of judicial nod, liberally just on the principle that this Legislative device had been adopted only to remove the basis of such decision. Financial burden to the public exchequer cannot be a ground to water down the rigor of law. Law at certain times may be harsh but Law Courts are bound to enforce the same. We are governed by the Rule of Law. The primacy of the Rule of Law cannot be ignored on the ground of hardship.

7. In the present batch of writ petitions, the constitutional validity of Ordinance 5 of 2004 which was given effect to w.e.f. 10-8-83 which had been replaced by A.P.Act 1 of 2005 is being challenged on the principal ground that this Legislation would have the effect of sitting in appeal over the Judgment made in W.P.No.26260/2000 and batch dt.12-9-2003.

8. Thus the writ petitioners in these writ petitions prayed for appropriate directions to permit the Language Pandits Grade-II benefits which were conferred G.O.Ms.No.330, dt.10-8-1983 in the light of the Judgment in W.P.No.26260/2000 & Batch, dt.12-9-2003. The Ordinance under challenge was replaced by Act 1 of 2005 as aforesaid and the same was published in the A.P.Gazette No.13, January 11, 2005.

9. The grounds of attack appear to be that the Legislature is incompetent to sit over in appeal over a Judgment made by this Court since it would amount to annulling the rights accrued to the writ petitioners under the aforesaid Judgment and hence the said Legislation is unconstitutional being opposed to the directions already made by this Court in W.P.No.26260/2000 & Batch, dt.12-9-2003.

10. The facts in detail tracing the historical background of this litigation which ultimately paved the way for issuance of the Ordinance subsequently replaced by an Act aforesaid had been narrated in elaboration in the respective affidavits filed in support of these writ petitions.

11. In the elaborate counter affidavit filed, several facts had been narrated in detail and ultimately stand had been taken that since the Legislation under challenge is within the Legislative Competence of the competent Legislature, the same to be upheld.

12. Mr.M.R.K.Chowdary and Sri E.Manohar, the learned senior Counsel representing the petitioners in these writ petitions, made elaborate submissions taking the Court through the respective stands taken by the parties, the relevant G.Os., the Memos., the Correspondence and also the other details and further placed strong reliance on several decisions to substantiate their submissions, like - MADAN MOHAN PATHAK RAM PARKASH MANCHANDA V/S UNION OF INDIA[68]; PRESIDENT OF INDIA V/S IN THE MATTER OF: CAUVERY WATER DISPUTES TRIBUNAL[69]; P.CHANDRA SHEKAR NAIDU & OTHERS v. CORRESPONDENT, SSRO PRIMARY UPPER SCHOOL, SRIKALAHASTHI & OTHERS[70]; P.TULASI DAS v. GOVERNMENT OF ANDHRA PRADESH[71]; S.R.BHAGWAT v. STATE OF MYSORE[72]; G.C.KANUNGO v. STATE OF ORISSA[73]; IN THE MATTERS OF CAUVERY WATER DISPUTES TRIBUNAL[74]; STATE OF TAMIL NADU v. STATE OF KARNATAKA[75]; GRAND KAKATIYA SHERATON HOTEL & TOWER EMPLOYEES & WORKERS UNION v. SRINIVASA RESORTS LIMITED[76]; PRAFULLA KUMAR DAS v. STATE OF ORISSA[77]; VIRENDER SINGH HOODA & OTHERS v. STATE OF HARYANA[78]; STATE OF GUJARAT MATHURADAS MOHAN LAL KEDIA v. RAMAN LAL KESHAV LAL SONI: SCHEDULE S D MUNSHAW[79]; B.S.VADERA G S CHAGGAR v. UNION OF INDIA[80]; KOSHAN LAL TANDON KUNJ BEHARI v. UNION OF INDIA[81]; v. C.R.RANGADHAMAIH[82]; P.SAMBA MURTHY v. STATE CHAIRMAN RAILWAY BOARD OF ANDHRA PRADESH[83]; MUNICIPAL CORPORATION OF CITY OF AHMEDABAD AYODAYA GNG AND MFG CO.LIMITED v. NEW SHROCK SPG AND WVG CO. LTD: STATE OF GUJARATETC[84]; BASANTA CHANDRA GHOSE & OTHERS v. EMPEROR[85]; BOMBAY DYEING AND MFG. CO. LIMITED v. BOMBAY ENVIRONMENT ACTION GROUP[86]; K.C.ARORA EX CAPT A S PARMAR v. STATE OF HARYANA[87]; STATE OF MAHARASHTRA v. KUMARI TANUJA[88]; INDIRA SAWHNEY v. UNION OF INDIA[89]; PEOPLES UNION FOR CIVIL LIBERTIES v. UNION OF INDIA[90]; B.KRISHNA BHAT v. STATE OF KARNATAKA[91].

13. Likewise, the learned Additional Advocate General – Sri Satya Prasad also had traced the historical background of litigation and the circumstances under which Ordinance was promulgated and further laid emphasis even on the financial burden which the public exchequer may have to meet and while supporting the validity of the Ordinance – the Act aforesaid, relied on several decisions and made a request for the dismissal of these writ petitions. The learned Additional Advocate General also referred to G.O.Ms.No.278, 40, 538, 96 while explaining the different facets of the present lis. Sufficient statistical data also had been furnished so as to demonstrate the burden which the Public Exchequer may suffer in the event of this Court holding the Ordnance/Act under challenge as invalid. The minutes of the meetings also had been placed before this Court so as to convince this Court in relation to the cut-off date.

14. The learned Additional Advocate General also placed strong reliance o n STATE OF ANDHRA PRADESH v. MC.DOWELL AND CO.[92]; MUNICIPAL COMMITTEE PATIALA v. MODEL TOWN RESIDENTS ASSON.[93]; HIRALAL v. UTTAR PRADESH[94]; TIRATH RAM RAJINDRA NATH LUCKNOW STATE OF RATTANLAL v. STATE OF UTTAR PRADESH[95]; MYLAPORE CLUB v. STATE OF TAMIL NADU[96]; STATE OF BIHAR v. BIHAR PENSIONERS SAMAJ[97]; VIRENDER SINGH BOODA v. STATE OF HARYANA[98]; STATE OF TAMIL NADU v. AROORAN SUGARS v. INDERJIT[100]. The ratio laid down in these decisions had been explained in detail and elaborate submissions had been LIMITED[99]; DAYAWATI made, that in the light of the same the constitutional validity of the Ordnance – Act under challenge to be upheld.

15. On the Retrospective Legislation, the learned Additional Advocate General placed strong reliance on State of Bihar’s case (referred 30 supra); State of Tamilnadu’s case (referred 32 supra); Virender Singh Hooda’s case (referred 31 supra); ASSISTANT COMMISSIONER OF URBAN LAND TAX v. BUCKINGHAM AND GARNATIC CO.LTD.[101]; STATE OF JAMMU AND KASHMIR v. TRILOKI NATH KHOSA[102]; Mylapore Club’s case (referred 29 supra); Hiralal Rattanlal’s case (referred 27 supra); and Tirath Ram Rajindra Nath Lucknow’s case (referred 28 supra).

16. The benefits given by the Executive by virtue of G.O.Ms.No.330 cancelled virtue G.O.Ms.No.176 and the Executive made an attempt to withdraw such benefits by virtue of cancellation which was disapproved by this Court. On such failure of the attempts on the part of the Executive to withdraw such benefits in the light of the judicial verdict, the Legislature had stepped in, to cure the same by bringing in the Retrospective Legislation, may be on the ground of grave public interest or the financial burden on the public exchequer.

17. Though a common counter affidavit was filed, the name of the Officer who had sworn to this counter affidavit also is not shown in the said counter affidavit. I n CITY AND INDUSTRIAL DEVELOPMENT CORPORATION v. DOSU AARDESHIR BHIWANDIWALA[103] the Apex Court laid emphasis on the aspect of the State placing proper affidavits before the Court.

18. On a careful analysis of the factual matrix, several facts appear to be not in serious controversy between the parties. The Government upgraded the Secondary Grade Basic Training Teachers (hereinafter, in short, referred to as ‘SGBT’) in Science and Mathematics in High Schools and Upper Primary Schools as B.Ed. Assistants (School Assistants) on the ground that they possessed the requisite qualifications. This was by an order in G.O.Ms.No.269, dt.14-6-77 w.e.f.1-6-

77. The upgradation of S.G.B.T. posts in Humanities was made in by virtue of G.O.Ms.No.886, dt.25-6-77 provided they were qualified by the cut off date viz., 21-1-76. In supersession the orders in G.O.Ms.No.629 and G.O.Ms.No.886, G.O.Ms.No.683 was issued creating 3172 B.Ed., posts to be filled up on certain conditions.

19. By virtue of G.O.Ms.No.1038, dt.14-9-81, 1327 B.Ed., posts were created in addition to 4499 B.Ed., posts which were already created and the Teachers appointed in all these posts were directed to be paid B.Ed. scales notionally and arrears be permitted to be paid w.e.f. 1-8-81. By G.O.Ms.No.43, dt.7-4- 2000 P.E.Ts., were given upgraded scale as that of Physical Directors Grade-II. By G.O.Ms.No.163 dt.1-12-2001 administrative sanction was accorded for upgradation of 15968 S.G.B.T. posts to that of School Assistants in 5776 schools. The Government issued G.O.Ms.No.330, dt.10-8-83, conferring certain benefits on Grade-II Pandits.

20. By virtue of G.O.Ms.No.176, dt.22-12-2000, the Government cancelled benefits conferred G.O.Ms.No.330, dt.10-8-83.

21. The said G.O.Ms.No.176 dt.22-12-2000 was questioned by the President of the State Language Teachers Association by filing O.A.No.377/2001 on the file of the A.P.Administrative Tribunal (hereinafter, in short, referred to as “A.P.A.T.”) and the A.P.A.T. dismissed O.A.No.377/2001 & Batch by a common Judgment dt.13-6-2002. The legality of the said order was questioned in W.P.No.20002/2002.

22. No doubt, stand had been taken that the Petitioner Association would represent all the members, who are all Grade-I and Grade-II Language Pandits in Government High Schools, Upper Primary School and some Schools of local authorities and the Teachers under Private Managements also. Thus, the persons qualified to be appointed as School Assistants were appointed as S.G.B.T. Teachers in the then existing vacancies were given the benefit of upgradation by creating School Assistant posts.

23. When similar benefit is requested for the Language Pandits Grade-II, the Government issued orders G.O.Ms.No.330, dt.10-8-83 keeping in view the policy of the Government indicated in Government Memo No.646, dt.11-3-

24. All the benefits conferred upon Grade-II Pandits were confined to those who were appointed prior to 11-3-82. Grade- II Pandits appointed after 11-3-82 were deprived of the benefits of G.O.Ms.No.330, dt.10-8-83. Sri Tajuddin, a Teacher, filed R.P.No.2158/86 questioning the cut off date i.e., 11-3-82 and the said cut off date was struck down as illegal by an order made by the erstwhile A.P.A.T. dt.17-8-89. The Government failed to implement the said order of the erstwhile A.P.A.T. W.P.No.10073/2001 was filed for implementation of the said order and the same was allowed by this Court by order dt.16-3-

2001. Proceedings of CEO, Z.P., KMM, dt.12-5-2001 were issued in favour of Tajuddin in R.P.No.2158/86, dt.17-8-89. Similar relief was refused by A.P.A.T. in O.A.No.49150/91 dt.28-2-94.

25. On filing Contempt Case before this Court, which the erstwhile A.P.A.T. did not possess by then, and in the context of the directions given in the Contempt Case, the Government implemented and they were given the benefits under G.O.Ms.No.330, dt.108-83 ignoring the cut off dated 11-3-82. Those benefits which were conferred upon the S.G.B.T. Teachers, P.E.Ts., also were extended to Grade-II Pandits provided they possess the requisite qualification prescribed to Grade-I Pandits.

26. However, instead of implementing the G.O.Ms.No.330, the Government issued orders G.O.Ms.No.176, dt.22-12-2000 taking away the benefits that are conferred under G.O.Ms.No.330 by way of withdrawal of such benefits contending that such conferment of benefits on Grade-II Pandits amounted to providing double benefits to the Language Pandits contrary to what was envisaged Automatic Advancement Scheme (hereinafter in short referred to as ‘AAS’) which was issued in G.O.Ms.No.164, dt.1-6-82.

27. The benefits conferred under G.O.Ms.No.330 were withdrawn by virtue of the orders contained in G.O.Ms.No.176, dt.22-12-2000 after a lapse of 20 years. The said G.O.Ms.No.176, dt.22-12-2000 was questioned before the A.P.A.T. at Hyderabad by way of filing O.A.No.377/2001 which was allowed by a Judgment dt.13-6-2002. Questioning the said orders made in O.A.No.377/2001, dt.13-6-2002, a batch of writ petitions were filed in W.P.No.26260/2000 and batch and the said batch of writ petitions were allowed setting aside the Judgment of the A.P.A.T.

28. Being aggrieved of the said Judgment, the Government carried the matter by way of Special Leave Products, S.L.P.Nos.5869 to 5990 and these S.L.Ps., were dismissed by the Apex Court on 27-2-2004. Thereafter, for the enforcement the Judgment of this Court, C.C.No.484/2004 W.P.No.7692/2001 was filed. In order to get over the situation having issued G.O.Rt.No.644, Education G.O.Rt.No.645, Education, dt.7-12-2000 implementing orders of the Courts, the Government issued the Ordinance No.5 of 2004, which later had been replaced by Act 1 of 2005 as already aforesaid and the same are being challenged in this batch of writ petitions.

29. The principal question which may have to be decided is whether the present Ordnance, replaced by an Act, had been thought of to nullify the effect of the said Judgment or whether the said question be decided dehorse the said Judgment. If the present Ordnance, the Legislation under challenge, this have no effect of nullifying the impact of the Judgment, there cannot be any doubt whatsoever that since the said Ordnance followed by the Legislation had been enacted by a competent Legislature, the same cannot be found fault.

30. However, the applicability of the said Legislation with Retrospective operation is yet another question which had been argued in elaboration. Hence, the other question to be decided is whether the Legislation is held to be had in toto or the relevant portions of the Legislation making the same to be operative Retrospectively alone to be held to be bad or by applying the doctrine of reading down the provisions are to read down so as to protect the benefits which already had accrued to the writ petitioners falling under the category of available accrued vested rights.

31. The Union Parliament and State Legislatures have plenary powers of legislation within the fields assigned to them and subject to certain constitutional and judicially recognized restrictions. They can Legislate Prospectively and Retrospectively as well – UNITED PROVINCES v. ATIQA BEGUM (MT.)[104]; PIARE DUSADH v. EMPEROR[105]; M.P.V.SUNDARARAMIER v. STATE OF A.P.[106]; J.K.JUTE MILLS CO.LTD. v. STATE OF U.P.[107]; RAI RAMKRISHNA v. STATE OF BIHAR[108]; K.C.Arora’s case (referred 20 supra); and BAKHTAWAR TRUST v. NARAYANA[109]. 32. The presumption in favour of the constitutionality of a statute being a well-settled principle, the decisions in relation thereto need no discussion in elaboration. The Retrospective operation of the declaratory statute had fallen for consideration in - COMMISSIONER OF INCOME TAX BOMBAY v. PODAR CEMENT PRIVATE LIMITED AND OTHERS[110]; BRIJ MOHAN DAS LAXMAN DAS v. COMMISSIONER OF INCOME TAX AMRITSAR[111]; ALLIED MOTORS PRIVATE LIMITED v. COMMISSIONER OF INCOME TAX DELHI[112]; R.RAJGOPAL REDDY v. PADMINI CHANDRASEKHARAN[113]; CHANNAN SINGH v. JAI KAUR (SMT.)[114]; CENTRAL BANK OF INDIA v. THEIR WORKMEN[115].

33. CRAIES in Statute Law, 7th Edition, page 58, had stated as hereunder:- “For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word ‘declared’ as well as the words ‘enacted’”. On a careful analysis of the decision of the Division Bench and also the Legislative provisions of the Ordinance and the Act as well, referred to supra, the same may not answer this test.

34. In MAXWELL v. MURPHY[116] which had been quoted in approval in Roadway v. Queen[117] by the High Court of Australia, it was stated “the general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.”

35. In SECRETARY OF STATE FOR SOCIAL SECURITY v. TUNNICLIFFE[118] it was stated “the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them unless a contrary intention appears. It is not simply a question of classifying an enactment s retrospective or not retrospective. Rather it may well be a matter of degree-the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.”

36. I n L’office Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co.Ltd.[119] it was observed that the question of fairness will have to be answered in respect of a particular statute by taking into account various factors, viz., value of the rights which the statute affects; extent to which that is diminished or extinguished by the suggested retrospective effect of the statute; unfairness of adversely affecting the rights; clarity of the language used by Parliament and the circumstances in which the legislation was created. In this context the views expressed in WILSON v. FIRST COUNTY TRUST LIMITED[120] and also the dissenting opinion of Sahai J, in K.S.PARIPOORNAN v. STATE OF KERALA[121] may be referred to.

37. It is pertinent to note that this is not a case of simple withdrawal of the concession once made that too with retrospective operation, but this a case where the cancellation thereof had been challenged and the same was held to be bad and in a way these benefits had received the approval by positive judicial nod.

38. There cannot be any doubt whatsoever that this annulling ordinance – legislation as well reflected from the reasons specified had been thought of with a view to get over the judicial verdict, that too with Retrospective operation. Whether it is permissible on the touch-stone of the well settled principles of the interpretation of statutes and the binding precedents in this regard may be the principal question to be gone into these matters.

39. It may be that on the ground of unfairness or unreasonableness alone, a statute may not be struck down, but however, when Retrospective operation is given, the Courts may have to examine such Legislation with all care and caution and if the Courts are satisfied that the said Legislation is an arbitrary piece of Legislation and discriminatory, Article 14 of the Constitution of India would be attracted and though the Legislature may be competent to enact such Legislations giving Retrospective effect to the operation of such provisions cannot have judicial approval especially when the available, accrued, vested rights, may be, conferred by an executive order and subsequently withdrawn, had been restored by virtue of judicial verdict.

40. I n New India Assurance Company Limited v. Sadanand Mukhi & Others[122] it was held that it is not for the Court, unless a statue is found to be unconstitutional, to consider the rationality thereof.

41. I n GRAND KAKATIYA SHERATON HOTEL & TOWERS EMPLOYEES’s case (referred 9 supra) it was observed:- “It was argued by the learned Counsel for the appellant there could not have been a comparison between the provisions of the Payment of Gratuity Act and the present provisions while deciding the constitutionality. For this purpose, the learned Counsel relied on the law laid down by this Court in State of M.P. v. G.C.Mandawar (AIR 1954 S.C., 493). The following observations in that case were relied upon: (AIR p.496, para 9) subject provisions “9….. Article 14 does not authorize the striking down of a law of one State on the ground that in contrast with a law of another State on the discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar unconstitutional by a process of comparative study of the provisions of enactments. The sources of authority for the two statutes being different, Article 14 can have no application.” subjects Insofar as the last decision in P.Laxmi Devi (2008) 4 SCC 720) is concerned, we do not see as to how it helps the appellant, as in that decision, this Court has recognized the presumption of constitutional validity of a statute. There can be no quarrel with proposition. Our attention was invited to paras 70, 72, 73 and 78. We could not find anything in those paragraphs, which supports the contention that a mere hardship cannot be a ground for striking down a provision. This Court had only shown presumption of constitutionality and has cautioned against the light treatment being given to the subject. In our opinion, that is not the case here. The High Court’s Judgment proceeds on solid bedrock of lucid reasoning and is not restricted to hardship alone. In R.N.Goyal v. AshwaniKumar Gupta (2004) 11 SCC 753) while repelling the constitutional challenge to the rules, which was observed by this Court that if the Rules framed under Article 309 of the Constitution of India were for general good, but caused hardship to the individual, the same could not be a ground for striking down the Rules. These observations are not apposite to the present controversy. Here impugned provisions have not been struck down merely because they would cause hardship to any individual or any class. In fact, the provisions have been shown to be totally unreasonable and in total contradiction with the established norms for the concept of gratuity. Not only that, the provisions have been shown to be discriminatory in respect of the two sets of workers, who are similarly, if not identically circumstanced. In Prafulla Kumar Das v. State of Orissa (2003) 11 SCC 614) also, it was specifically observed in para 45 that the legislature had the requisite jurisdiction to pass appropriate legislation, which would do justice to its employees. The Court went on to hold that if a balance is sought to be struck down by reason of the impugned legislation, it would not be permissible for the Court to declare the legislation ultra vires only because petitioners. it may cause some hardships These observations in Prafulla Kumar Das v. State of Orissa (2003) 11 SCC 614) were made in relation to the service jurisprudence, where, the constitutional validity of the Orissa Administrative Service, Class II (Appointment of Officers Validation) Amendment Act, 1992, was in challenge. By that amendment, relative seniority was awarded to the direct creuits for the year 1973, who were appointed in the year 1975, over and above the mergerists borne in the said service by virtue of merger of their parent cadre with the Orissa Administrative Service, Class II. The argument was raised that the such grant of seniority would amount to a hardship to the petitioners in the matter of seniority. that context The Constitution Bench of this Court in Prafulla Kumar Das v. State of Orissa (2003) 11 SCC 614) thoroughly examined the provisions of Section 2 of the Amendment Act with reference to the earlier cases decided on the question and came to the conclusion that the it was disinclined to tamper with the settled practice, particularly, in view of the law laid down in Direct Recruit Class II Engg. Officers’ Assn. V. State of Maharashtra (1990) 2 SCC 715). It was found that the concept of the “year of allotment” was workable and it was within the powers of the Government to recruit the officers from a variety of sources. It was also found that the seniority awarded was on the basis of a legal fiction, which had to be given its full effect. It was the observations regarding hardship were made. We are afraid, the fact situation in the present case is entirely different and the observations made are not applicable to the present matter. We, therefore, reject the argument raised by the appellant. This is apart from the fact that the High Court has correctly observed that even if the law cannot be declared ultra vires on the ground of hardship, it can unreasonableness Wednesbury’s The Court, “unreasonableness” specifically, has also found that this reasonableness (sic unreasonableness) is apparent from tfact that the employees falling within sub-Sections (1) and (3), although from different classes, had been treated equally, giving them the same benefit. For this purpose, the Court also relied on the observations made in Bennett Coleman & Co. v. Union of India (1972) 2 SCC 788). The High Court also referred to the observations made in Peerless General Finance an Investment Co.Ltd. v. RBI (1992) 2 SCC 343 in this behalf and rightly concluded that the impugned provisions was totally unreasonable.” applying principles. declared ground

42. In GOVERNMENT OF ANDHRA PRADESH v. P.LAXMI DEVI[123] while reversing P.LAXMI DEVI v. GOVERNMENT OF ANDHRA PRADESH[124] the Apex Court discussed on the aspect of constitutional validity of a statute and the judicial review in the context of Thayer’s doctrine.

43. I n KARNATAKA BANK LIMITED V. STATE OF A.P.[125] it was held that such interpretation to hold a Legislation as unconstitutional to be avoided. In DIVISIONAL MANAGER ARAVALI GOLD CLUB v. CHANDER HASS[126] the power of judiciary to declare the limits of all the three organs of the State had been well discussed.

44. The Legislative, Executive and Judicial wings are expected to discharge their respective duties as ordained by the provisions of the Constitution. Balancing of powers between these wings may be mainly essential for healthy administration. Be it a Legislator, be it an Executive, or be it a Judge, these are bound by the Law and the provisions of the Constitution and these have to function as ordained by the scheme of the Constitution within their respective domains.

45. The checks and balances always to be kept in mind for the healthy functioning of the public institutions. Judicial verdict cannot be defeated especially by an express Retrospective Legislative Device on the simple ground that if such judicial verdict to be honoured, the public exchequer would be over-burdened financially. 46 Whether the presumption in favour of the constitutionality of a statute can be stretched to such an extent of giving judicial approval to the present Legislative action thought of so as to annul the judicial verdict in Retrospective, in the considered opinion of this Court the Retrospectivity cannot be given the judicial approval in the light of the clear Legal position in this regard. On this ground alone, as to the operation specified in the Ordinance and the Act aforesaid cannot be justified.

47. “Legislative Activism” invoked so as to annul the available, accrued, vested rights by virtue of a Judgment, with Retrospectivity, that too, normally be not to be approved. “Legislative wisdom” to be well vigilant while resorting to Legislation, not to encroach upon the arena of the “Judicial Wing”. The clear “Defined Limitations” of the “Three Wings” to be observed in letter and spirit.

48. While appreciating and following the precedents, the questions in controversy the present case and precedents wherein similar or akin questions had fallen for consideration and answered with reasons may have to be followed. The decisions of the Constitutional Benches and the Larger Benches to be followed in preference to the Division Bench decisions, the directness of the point decided in a particular given case and the background facts also may have to be considered.

49. In this context P.Chandra Shekhar Naidu’s case (referred 3 above); P.Tulasi Das’s case (referred 4 supra); Madan Mohan Pathak Ram Prakash Manchanda’s case (referred 1 supra); President of India’s case (referred 2 supra) and S.R.Bhagwat’s case (referred 5 supra) may be specifically referred to and it is needless to say that in the light of the same, the said decisions to be followed on careful examination of the factual matrix and also the ratio laid down in the said decisions in preference to PROCESS TECHNICIANS AND ANALYSTS UNION V. UNION OF INDIA[127]; UNION OF INDIA v. CYNAMIDE INDIA LIMITED[128] and several other decisions strongly relied on by the learned Additional Advocate General specified supra. As already aforesaid, the Precedent Law to be applied to a particular given case in the light of the facts and circumstances of such given case.

50. In Madan Mohan Pathak Ram Prakash Manchanda’s case (referred 1 supra) it was held:- “It is significant to note that there was no reference to the judgment of the Calcutta High Court in the Statement of Objects and Reasons, nor any non obstante clause referring to a judgment of a court issued by judgment of that unfortunately in Sec. 3 of the impugned Act. The attention of Parliament does not appear to have been drawn to the fact that the Calcutta High Court had already issued a writ of Mandamus commanding the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976. It appears Calcutta High Court remained almost unnoticed and the impugned Act was passed in ignorance of that judgment. Section 3 of the impugned Act provided that the provisions of the Settlement in so far as they relate to payment of annual cash bonus to Class III and Class IV employees shall not have any force or effect and shall not be deemed to have had any force or effect the writ of from 1st April, 1975. But the Calcutta High Court Mandamus directing the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976 remained untouched by the impugned Act. So far as the right of Class III and Class IV employees to annual cash bonus for the year 1st April, 1975 to 31st March, 1976 was concerned, it became crystallised in the judgment and thereafter they became entitled to enforce the writ of Mandamus granted by the judgment and not any right to annual cash bonus under the Settlement. This right under the judgment was not sought to be taken away by the impugned Act. The judgment continued to subsist and the Life insurance Corporation was bound to pay IV annual cash bonus employees for the year 1st April, 1975 to 31st March, 1976 in obedience to the writ of Mandamus. The error committed by the life Insurance Corporation was that it withdrew the Letters Patent Appeal and allowed the judgment of the learned Single Judge to become final. By the time the Letters Patent Appeal came up for hearing, the impugned Act had already come into force and the Life Insurance Corporation could, therefore, have successfully contended in the Letters Patent Appeal that, since the Settlement, in so far as it provided for payment of annual cash bonus was annihilated by the impugned Act with effect from 1st April, 1975, Class III and Class IV employees were not entitled to annual cash bonus for the year 1st III and Class to Class inexplicable April, 1975 to 31st March, 1976 and hence no writ of Mandamus could issue directing the Life Insurance Corporation to make payment of such bonus. If such contention had been raised, there is little doubt, subject of course to any constitutional challenge to the validity of the impugned Act, that the judgment of the learned Single Judge would have been upturned and the writ petition dismissed. But on account of appreciate, the Life Insurance Corporation did not press the Letters Patent Appeal and the result was that the judgment of the learned Single Judge granting writ of Mandamus became final and binding on the parties. It is difficult to see how in these circumstances the Life Insurance Corporation could claim to be absolved from the obligation imposed by the judgment to carry out the writ of Mandamus by relying on the impugned Act. reason, which is difficult this decision The Life Insurance Corporation leaned heavily on the decision of this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388 : (AIR 1970 SC 192), in support of its contention that when the Settlement in so far as it provided for payment of annual cash bonus was set at naught by the impugned Act with effect from 1st April, 1975, the basis on which judgment proceeded was fundamentally altered and that rendered the judgment ineffective and not binding on the parties. We do not lays down any such wide proposition as is contended for and on behalf of the Life Insurance Corporation. It does not say that whenever any factual or legal situation is altered by retrospective legislation, a judicial decision rendered by a court on the basis of such factual or legal situation prior to the alteration, would straightaway, without more, cease to be effective and binding on the parties. It is true that there are certain observations in this decision which seem to suggest that a court decision may cease conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. But these observations have to be read in the light of the question which arose for consideration in that case. There, the validity to be binding when this Court it was held by of the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963 was assailed on behalf of the petitioners. The Validation Act had to be enacted because in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad, (1964) 2 SCR 608 : (AIR 1963 SC 1742), that since section 73 of the Bombay Municipal Boroughs Act, 1925 allowed the Municipality to levy a 'rate' on buildings or lands and the term 'rate' was confined to an imposition on the basis of annual letting value, tax levied by the Municipality on the lands and buildings on the basis of capital value was invalid. Section 3 of the Validation Act provided that notwithstanding anything contained in any judgment, decree or order of a Court or tribunal or any other authority, no tax assessed or purported to have been assessed by a municipality on the basis of capital value of a building or land and imposed, collected or recovered by the municipality at any time before the commencement of the Validation Act shall be deemed to have invalidly assessed, imposed, collected or recovered and the imposition, collection or recovery of the tax so assessed shall be valid and shall be deemed to have always been valid and shall not be called in question merely on the ground that the assessment of the tax on the basis of capital value of the building or land was not authorised by law and accordingly any commencement of the validation Act and leviable for a period prior to such commencement but not collected or recovered before such commencement may be collected or recovered in accordance with the relevant municipal law. It will be seen that by S. 3 of the impugned Act the Legislature retrospectively imposed tax on building or land on the basis of capital value and if the tax was already imposed, levied and collected on that basis, made the imposition, levy collection valid, notwithstanding the declaration by the Court that as 'rate', the levy was incompetent. This was clearly permissible to the Legislature because in doing so, the legislature did not seek to reverse the decision of this Court on the interpretation of the word 'rate', but retrospectively amended the law by providing for tax so assessed before recovery `imposition of tax on land or building on the basis of capital value and validated the imposition, levy, collection and recovery of tax on that basis. The decision of this Court holding the levy of tax to be incompetent on the basis of the unamended law, therefore, became irrelevant and could not stand in the way of the tax being assessed, collected and recovered on the basis of capital value under the law as retrospectively amended. That is why this Court held that the Validation Act was effective to validate imposition, levy, collection and recovery of tax on land or building on the basis of capital value. It is difficult to see how this decision given in the context of a validating statute can be of any help to the Life Insurance Corporation. Here, the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. But it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a writ of Mandamus directing the Life Insurance Corporation to pay the amount of such bonus. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored Insurance Corporation. We are, therefore, of the view that, in any event, irrespective of whether the impugned Act is Insurance constitutionally valid or not, Corporation is bound to obey the writ of Mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year 1st April, 1975 to 31st March, 1976 to Class III and Class IV employees. Now, to the grounds of constitutional challenge:” it must be obeyed by the Life the Life

51. In The Matter of Cauvery Water Disputes Tribunal’s case (referred 2 supra) it was held:- “The Ordinance is unconstitutional because it affects the jurisdiction of the Tribunal appointed under the Central Act, viz. , the Inter-State Water Disputes Act which legislation has been made under Article 262 of the Constitution. As has been pointed out above, while analysing the provisions of the ordinance, its obvious purpose is to nullify the effect of the interim order passed by the Tribunal on 25/06/1991. The Ordinance makes no secret of the said fact and the written statement filed and the submissions made on behalf of the State of Karnataka show that since according to the State of Karnataka the Tribunal has no power to pass any interim order or grant any interim relief as it has done by the order of 25th June, 199 1, the order is without jurisdiction and, therefore, void ab initio. This being so, it is not a decision, according to Karnataka, within the meaning of Section 6 and not binding on it and in order to protect itself against the possible effects of the said order, the Ordinance has been issued. The State of Karnataka has thus arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the interim order or not and whether the order is binding on it or not. Secondly, the State has also presumed that till a final order is passed by the Tribunal, the State has the power to appropriate the waters of the river Cauvery itself unmindful of and unconcerned with the consequences of such action on the lower riparian States. Karnataka has thus presumed that it has superior rights over the said waters and it can deal with them in any manner. In the process, the State of Karnataka has also presumed that the lower riparian States have no equitable rights and it is the sole judge as to the share of the other riparian States in the said waters. What the State of Karnataka has assumed the role of a judge in its own cause. Thus, apart from the fact that the ordinance directly nullifies the Tribunal dated 25/06/1991, it also challenges the decision dated 26/04/1991 of this Court which has ruled that the Tribunal had power to consider the question of granting interim relief since it was specifically referred to it. The Ordinance further has an extra- territorial operation inasmuch as it interferes with the the decision of further, equitable rights of Tamil Nadu and Pondicherry to the waters of the Cauvery river. To the extent that the Ordinance interferes with the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made but being also in conflict with the judicial power of the State. In this connection, we may refer to a decision of this Court in Municipal Corporation of the City of Ahmedabad v. New Shorock Spg. and Wvg. Co. , Ltd. (1971) 1 SCR 288 : (AIR 1970 SC 1292 ). The facts in this case were that the High Court as well as this Court had held that property tax collected for the Ahmedabad Municipal certain years by Corporation was illegal. In order to nullify the effect of the decision, the State Government introduced the Bombay Section 152a by amendment Provincial Municipal Corporation Act the effect of which was to command the Municipal Corporation, to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. This Court held that the said provision makes a direct inroad into the judicial powers of the State. The legislatures under the Constitution have within the prescribed limits, power retrospectively. By prospectively as well as exercise of those powers a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legislature in the country has power to ask the instrumentalities of the State to disobey or disregard decisions given by the courts. Consequently, the provisions of sub-section 3)of Section 152a were held repugnant to the Constitution and were struck down. the same effect. s another decision of this Court in Madan Mohan Pathak v. Union of India, (1978) 3 SCR 334: (AIR 1978 SC 803 ). In this case a settlement arrived at between the Life Insurance Corporation and its employees had become the basis of a decision of the High Court of Calcutta. This settlement was sought to be scuttled by the Corporation on the ground that they had received to make cleared by instructions from the Central Government that no payment of bonus should be made by Corporation to its employees without getting the the Government. Th7e employees, therefore, moved the High Court, and the High Court allowed the -petition. Against that, a Letters Patent A peal was filed and while it was pending, the Parliament passed the Life Insurance Corporation (Modification of Settlement) Act, 1976 the effect of which was to deprive the employees of bonus payable to them in accordance with the terms of the settlement and the decision of the single Judge of the High Court. On this amendment of the Act, the Corporation withdrew its appeal and refused to pay the bonus. The employees having Court approached constitutional validity of the said legislation, the Court held that it would be unfair to adopt legislative procedure to undo a settlement which had become the basis of a decision of the High Court. Even if legislation can remove the basis of a decision, it has to do it by alteration of general rights of a class but not by simply excluding the specific settlement which had been held to be valid and enforceable by a High Court. The object of the Act was in effect to take away the force of the judgment of the High Court. The rights under the judgment would be said to arise Constitution. independently of Article 19 of challenging Yet another decision of this Court on the point i s P. Sambamurthy v. State of Andhra Pradesh, (1987) 1 SCR 879 : (AIR 1987 SC 663 ). In this case what was called in question was the insertion of Article 371-D of the Constitution. Clause (5) of the Article provided that the order of the Administrative Tribunal finally disposing of the case would become effective upon the state Government or on the expiry of three months from the date on which the order was made, whichever was earlier. The proviso to the clause provided that the State Government may by special order made in writing for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it became effective and in such a case the its confirmation by order of the Tribunal shall have effect only in such modified form or be of. no effect. This Court held that it is a basic principle of the rule of law that the exercise of Power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law, and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of the law on the part of the executive and other authorities. It is through the power of judicial independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. If the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound the death-knell of the rule of law. The rule of law would be meaningless as it would be open to the State Government to defy the law and yet get away with it. The proviso to Cl. (5) of Art. 371-D was, therefore, violative of the basic structure doctrine. review conferred on an The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal.

52. In PROCESS TECHNICIANS AND ANALYSTS UNION v. UNION OF INDIA[129] it was observed:- “The appellant has challenged the power given under Section 3 of 1988 Act to frame a scheme retrospectively. The appellant has also challenged the 1989 Scheme framed under the said Act on the ground that it has been contended that the Scheme cannot be made operative retrospectively from 24-1- 1976 when the Act under which it is framed came into the scheme regulates force only on 2-7-1988. This submission is based on a misconception. Under sub-section (1) or sub- section (3) of Section 3. The retrospective operation which is given to the Scheme of 1989 is, therefore, under a statutory power so given to the Central Government. Since conditions of service of post-nationalisation refinery the post- it must necessarily cover employees, nationalisation period which began from 24-1-1976. It is open to the legislature to make retrospective laws. Therefore, the statutory scheme which has been made retrospective in exercise of statutory power expressly granted to the Central Government cannot be faulted on that ground.”

53. The Five Judge Bench in State of Tamil Nadu’s case (referred 32 supra) had observed:- “The Legislature by different deeming clauses and through statutory fiction requires the Court to treat that amendments so introduced by Act 7, of 1974 had never been introduced in the Principal Act. The power of the legislature to amend, delete or obliterate a statute or to enact a statute prospectively or retrospectively cannot be questioned and challenged unless the court is of the view that such exercise is in violation of Article 14 of the Constitution. It need not be impressed that whenever any Act or amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are bound to be effected one way or the other. In every case, it cannot be urged that the exercise by the legislature while introducing a new provision or deleting an existing provision with retrospective effect per se shall be violative of Article 14 of Constitution. If that stand is accepted, then the necessary corollary shall be that legislature has no power to legislate retrospectively, because in that event a vested right is effected; of course, in special situation this Court has held that such exercise was violative of Article 14 of the Constitution. Reference in this connection may be made to the cases of State of Gujarat v. Raman La] Keshav Lal Soni, (1983) 2 SCR 287: (AIR 1984 SC 161); T. R. Kapur v. State of