Mr. K.S. Thakur & Ors. v. State of Haryana & Ors.

Judgment

1. Shri Rajinder Kumar,

30.1.1997 Court Nazir to Addl. District and Sessions Judge, Nahan.

2. Sh. Narinder Kumar Civil

28.1.1997. Ahlmad to Senior Sub Judge-cum-C.J.M. Nahan. In sequel to Annexures PE and PF, he was placed in the pay scale of Rs. 5000-8100 with effect 28.1.1997 and his basic pay on 1.1.1998 was fixed at Rs. 5160/- per month (Annexure PF-1). He was promoted and designated as Junior Assistant on 6th October, 1998 in the pay scale of Rs. 4400-7000 with effect from 1.1.1996 (Annexure PH). In fact, after the issuance of Annexure PH, his basic pay was revised to Rs. 4700/- from Rs. 5160/- with effect from 1.1.1998. He made a representation on

17.4.2001 to respondent No.2 against the reduction of his pay scale from Rs. 5000-8100 to 4400-7000 with effect from 1.1.1996. His representation was rejected by respondent No.2 and conveyed to him on 18/19.10.2001. Thereafter he made a representation to respondent No.3 on 15.1.2002. The same was rejected on 16th April, 2004. The petitioner by way of 3 present petition has assailed the office order dated 6.10.1998 whereby he has been shown in the pay scale of Rs. 4400-7000 instead of 5000-8100. He has also prayed for quashing of Annexure PJ dated 18/19.10.2001 and Annexure PL dated 16.4.2004. He has also sought quashing of Annexure PG dated 1.9.1998 which according to him gives retrospective effect to the extent of bifurcation of the cadre of Clerks and Junior Assistant in the ratio of 50:50 with effect from 1.1.1996. The petitioner was permitted to amend the writ petition by this Court. The respondents have filed replies to the amended writ petition. Mr. K.S. Thakur, Advocate had strenuously argued that the issuance of Annexure PH dated 6.10.1998, Annexure PJ dated 18/19.10.2001 and Annexure PL dated 16.4.2004 is illegal, arbitrary, unconstitutional and thus violative of Article 14 of the Constitution of India. He also contended that his client has been granted the pay scale of Rs. 1500-2700 with effect from 28.1.1997 on the basis of Himachal Pradesh Civil Services (Revised Pay) (First Amendment) Rules, 1990 notified on

23.7.1990 after his client had completed 10 years service. He further contended that his client was granted the pay scale of Rs. 5000-8100 as per Annexures PE and PF dated 9.1.1998 and 20.1.1998 in accordance with the conversion table. Alternatively, he had prayed that once the pay scale has been granted to his client as is evident from Annexure PF-1, the same could not be taken away on the basis of Annexure PG by giving retrospective effect to it. In other words his contention is that the right of his client had crystalised on the basis of Annexures PE and PF and the same could not be taken away on the basis of Annexure PG dated

1.9.1998. Mr. Rajinder Dogra, Additional Advocate General and Ms. Jyotsna Rewal Dua, Advocate had strenuously argued that the petitioner has been 4 put in the pay scale of Rs. 4400-7000 on 6.10.1998 on the basis of Annexure PG dated 1.9.1998. They also contended that the petitioner had already given his option for new pay scale which had come into force with effect from 1.1.1996. Ms. Jyotsna Rewal Dua had defended that the representation made by the petitioner had rightly been rejected after due application of mind on 18/19.10.2001 and 16.4.2004. She also contended that no vested right has accrued to the petitioner on the basis of Annexure PE and PF. She further contended that the petitioner was not entitled to issuance of show cause notice since the petitioner has been placed in the pay scale of Rs. 4400-7000 on the basis of Annexure PG dated 1.9.1998. I have heard the learned counsel for the parties and perused the

pleadings of the parties carefully. The facts which emerge from the pleadings of the parties are that the petitioner was appointed as a Clerk on 28.1.1987. He was granted the pay scale of Rs. 1200-2100 with effect from 28.1.1992. He was confirmed in Clerical cadre. It will be apt at this stage to reproduce the relevant extract of the rules called “The Himachal Pradesh Civil Services (Revised Pay (First Amendment) Rules, 1990”, which reads thus: (a) Clerks. 400-600 50:50 510-800 (i) 950-1800 with an initial start of Rs. 1000/- basic entry scale. This scale is given to the total No. of posts. No. of posts in a cadre minus the posts which are to be placed in the scales of pay Rs. 1200-2100 and Rs. 1500-2640 as specified in items (ii) and (iii) after the date of notification, minimum academic qualifications for recruitment as 5 clerk shall be matriculation second Division or 10+2. (ii) 1200-2100 This scale is to be given to about forty per cent of the total number of posts of clerks in cadre after a minimum period of five years service as clerk in the cadre and the incumbents are to be designated as Senior Clerks. (iii) 1500-2640 This scale is to be given to about forty per cent of the total number of posts of clerks in a cadre after a minimum period of ten years of service together as clerk and senior clerks in the cadre and the incumbents designated Junior Assistants. Note:1. The method of working out the percentage of posts of clerks in a Cadre in the aforesaid three scales viz rupees 950-1800, 1200-2100 and 1500-2640 given in the Annexure to these rules. The petitioner was appointed on 28.1.1987 and had completed 10 years service as per the Himachal Pradesh Civil Services (Revised Pay (First Amendment) Rules, 1990. He was placed in the revised scale of Rs. 1500-2700 with effect from 28.1.1997. The FC-cum-Secretary (Finance) to the Government of Himachal Pradesh had issued Annexure PE on 9th January, 1998. It is evident from the conversion table annexed to Annexure PE that the pay scale of Rs. 1500-2700 was revised to Rs. 6 5000-8100. The State has notified the rules called “The Himachal Pradesh Civil Services (Revised Pay) Rules, 1998. Rule 3 thereof defines the terms basic pay, existing scale, existing emoluments, master scale, revised pay and revised scale. Rules 5 and 6 reads thus: “5. Drawal of Pay in the Revised Scale.- (i) Save as otherwise expressly provided these Rules, a Government employee shall draw pay in the revised scale; Provided that a Government employee may opt to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or ceases to draw his pay in that scale; Provided further that the right to exercise option shall not be available to a person appointed to a post on or after the First day of January, 1996, (whether for the first time in Government service, or by transfer or promotion from another post) and he shall be allowed pay only in the revised scale, without any benefit of pay fixation in the revised scale. (ii) The option to retain the existing scale under this rule shall be available only in respect of one existing scale.

6. (1) The option under rule 5 to elect the existing scale or the revised scale shall be exercised in writing in the Form of Option appended to these Rules, so as to reach the authority specified in sub rule (2) within a period of six months from the date of issue of these rules or where an existing scale has been further revised by any subsequent order then another option may be exercised within six months of the date of such order, except that for employees posted in tribal and notified backward/hard areas, the period for exercising option shall be one year: Provided that:- 7 (i) in the case of Government employee who is, on the date of issue of these orders or such subsequent orders, as the case may be, out of India or on leave or on deputation or on foreign service, the option shall be exercised, in writing, so as to reach the authority specified in sub rule (2) within a period of six months (one year those posted tribal or notified backward/hard areas) from the date of his taking charge of his post under the State Government; and (ii) Where a Government employee is under suspension on that date, the option shall be exercised within a period of six months of the date of his return to his duty if that date is later than the date specified in this sub-rule. (2) An option exercised under sub-rule (1) shall be final and shall be intimated by the Government employee to the Head of Office. (3) If the intimation regarding option is not received within the time mentioned in sub-rule (1), it shall be deemed that the Government employee has opted for the revised scale on and with effect from the First day of January, 1996. (4) Failure to opt for a most beneficial date by an employee will not give him a right under these rules for stepping up of his pay in the Revised Scale over the pay of another employee who may have opted for such a date even if the former was drawing pay equal to or more than the latter in the same existing scale. Note:1. Persons, whose services were terminated on or after the First day of January, 1996, but before the issue of these rules and who could not exercise the option within the prescribed time limit, on account of death discharge on the expiry of sanctioned post, resignation dismissal or discharge on disciplinary grounds, are entitled to the benefits of this rule. Note:2. Persons, who have died on or after the First day of January, 1996 and have not exercised option within the prescribed time limit, shall be deemed to have 8 opted for the revised scale on and from the First day of January, 1996, or such later date under these rules as is most beneficial in their case.” The petitioner had given his option on 11.6.1998. Consequently his pay was fixed at Rs. 5160/- on 1.1.1998. Thereafter the State had amended the Himachal Pradesh Civil Services (Revised Pay)) Rules, 1998 by way of The Himachal Pradesh Civil Services (Revised Pay (First Amendment) Rules, 1998. The effect of the amendment carried out vide notification dated 1.9.1998 was that the existing Schedule of the earlier rule was re-numbered as First Schedule and thereafter the Second Schedule was added to the following effect: “THE SECOND SCHEDULE (See rule 3 (b), (g) and rule 4) Revised Scales of Pay for Common Categories/posts as specified hereunder: Sr.No. Designation/Name of Remarks. Category Existing Pay scale (In Rupees) 3. Revised Pay Scale in Rupees 4.

1. 1. GENERAL HELPERS AND MAINTENANCE STAFF 1. 770-1410

5. - 2520- 4140 Peon, Chowkidar, Frash, Mali, Bhishti and Sweeper (with comibed designation within designation such Peon-cum- Chowkidar, Sweeper-cum- Frash etc.) and other Class-IV the existing Scale mentioned column-3 except those mentioned at Item No.2 and 3 of this serial number. Mali, Head Jamadar Record Lifter. Daftri

3. 800-1455 800-1455 2720- 4260 2820- 4400 - - II. MINISTERIAL STAFF

1. Clerk 9 1200- i) 950-1800 initial start of Rs. 1000/- (Clerk) (20%) ii) 2130 (Senior Clerk) (40%) iii) 1500- 2700 (Junior Assistant (40%) 3120- 5160 (50%) 4020- 6200 5000- 8100 (60%) The typewriting allowance to the Typist Clerks in the Scales of 3120-5160 deployed on full time basis shall be Rs. 75/- p.m. with effect from 1st Sept. 1997 sanctioning typewriting allowance a certificate to the effect that the concerned Clerks working actually deployed typing from the Head of Office will be required every month. The designation and the revised equivalent of the unrevised pay scale of officials working as Senior Clerks and Junior Assistant as on 1st January, 1996 shall be protected as a measure personal to them. For future, the total number of posts of Clerk including Senior Clerk and junior Assistant in a cadre existing on 1st January, 1996 shall be divided into the posts of Clerk in the scale of Rs. 3120-5160 and Junior Assistant in the scale of Rs. 4400-7000 in the ratio of 50:50. The new posts of Junior Assistant shall be created on the basis of actual requirements. The posts of Junior Assistant shall be filled up by promotion to the extent of 100% from amongst the Clerks who have an experience of working as such for a minimum period of 5 years in the cadre of the department in which he is working at the time of promotion. Respondent No.2 on the basis of Annexure PG dated 1.9.1998 again promoted and designated the petitioner as Junior Assistant in the pay scale of Rs. 4400-7000 instead of Rs. 5000-8100 with effect from 10

1.1.1996. He made a representation as noticed above but the same was rejected by the District and Sessions Judge on 18/19.10.2001 without assigning any reasons. He made a representation to the Registrar General of this Court on 15.1.2002. The same was rejected without assigning any reasons. It was necessary for the Registrar General as well as the District and Sessions Judge, Sirmaur at Nahan to assign reasons why the representation of the petitioner was rejected. The assigning of reasons is necessary since the person has to assail the order passed on representation. Now, the Court has to consider whether the petitioner, who was granted the pay scale of Rs. 5000-8100, could be reduced to pay scale of Rs. 4400-7000 with effect from 1.1.1996. The petitioner was appointed Clerk with effect from 28.1.1987. He had completed 10 years of service in the year 1997. He was placed in the pay scale of Junior Assistant with effect from 28.1.1997 on the basis of the Himachal Pradesh Civil Services (Revised Pay (First Amendment) Rules, 1990. The relevant extract of the rules has already been reproduced hereinabove. The pay scale of the Junior Assistant was Rs. 1500-2700. The pay scale of Rs. 1500-2700 was to be revised to Rs. 5000-8100 as per Annexures PE and PF dated

9.1.1998 and 20.1.1998 respectively. His pay was fixed in the pay scale of Rs. 5000-8100. The petitioner started drawing his salary in the pay scale of Rs. 5000-8100. It was only on 6.10.1998 that his pay was reduced from the pay scale of Rs. 5000-8100 to the pay scale of Rs. 4400-7000. This purportedly has been done on the basis of notification dated 1.9.1998 whereby the total number of posts of Clerks, including Senior Clerk and Junior Assistant in a cadre existing on 1st January, 1996 were divided into the posts of Clerk in the pay scale of Rs. 3120-5160 and Junior Assistant in the pay scale of Rs. 4400-7000 in the ratio of 50:50. 11 The post of Junior Assistant was to be filled up by promotion to the extent of 100% from amongst the Clerks who have an experience of working as such for a minimum period of 5 years in the cadre of the Department in which he was working at the time of promotion. The amendment carried out has been given retrospective effect with effect from 1st January, 1996. Mr. K.S. Thakur, Advocate had submitted that Annexure PG dated

1.9.1998 could not be given retrospective effect from 1.1.1996 since according to him his client has acquired the right to be placed in the pay scale of Rs. 5000-8100 after the revision of pay scale of Rs. 1500-2700 to the scale of Rs. 5000-8100 as per Annexures PE and PF dated 9.1.1998 and 20.1.1998. The submission of Mr. K.S. Thakur had been vehemently contested by Ms. Jyotsna Rewal Dua and according to her the petitioner has rightly been placed in the pay scale of Rs. 4400-7000 as per Annexure PG. There is a fallacy in the submission of Mr. Jyotsna Rewal Dua and the same cannot be accepted. The petitioner has been granted the pay scale of Rs. 5000-8100 with effect from 28.1.1997 on the basis of the Himachal Pradesh Civil Services (Revised Pay) Rules, 1990 after he had completed 10 years of service. The pay scale of Rs. 1500-2700 was revised as noticed above to Rs. 5000-8100 as per Annexures PE and PF. In fact, the petitioner had been granted the pay scale of Rs. 5000-8100 but it was only on the basis of Annexure PG that the same was revised to Rs. 4400-7000. The Court is of the firm opinion that this was not permissible under the law. The petitioner had acquired vested right to be placed in the higher pay scale on 28.1.1997 after completion of 10 years and the same could not be reduced to Rs. 4400-7000 by giving retrospective effect to Annexure PG dated 1.9.1998. The submission of the learned Additional Advocate General and Ms. Jyotsna Rewal Dua that since the petitioner was not placed in the pay scale of Junior Assistant on 1.1.1996, he could 12 not be granted the revised pay scale of Rs. 5000-8100, cannot be accepted. The respondents were required to harmonize the Himachal Pradesh Civil Services (Revised Pay) Rules, 1990 with the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 as amended from time to time. For all intents and purposes the petitioner was placed in the pay scale of the Junior Assistant with effect from 28.1.1997 and he was to be granted the pay scale of Rs. 5000-8100 after revision of pay scale. The petitioner has acquired the legal right to get the higher pay scale on the basis of the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 and the same could not be withdrawn by misconstruing the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998. The matter can be viewed from another angle. The purpose of constituting the Pay Commission is to revise the pay scales of the employees. In the present case the petitioner had already been granted the higher pay scale with effect from 28.1.1997 which was revised from Rs. 1500-2700 to Rs. 5000-8100 but the same was reduced after coming into force Annexure PG dated 1.9.1998. This could not be the intention of the rule making authorities. This anomalous situation which had arisen could be solved by invoking rule 11, which reads thus: “11. Powers to Relax:- Where the Government satisfied that the operation of these Rules causes undue hardship to any individual Government employee or class of Government employees, it may, by order in writing, relax or dispense with any of the provisions of these rules to such extent and subject to such conditions as it may consider necessary.” This exercise admittedly has not been undertaken by respondents. The representations made by the petitioner have not been decided in accordance with law since no reasons have been assigned while rejecting the same. The enforcement of new rules had definitely 13 caused undue hardship to the petitioner since he was drawing the higher pay scale of Rs. 5000-8100, but the same has been reduced to Rs. 4400- 7000 as per new rules. The petitioner was required to retain this pay scale as personal pay and thereafter the scale was to be revised increasing his salary instead of reducing it. The respondents have taken a very unreasonable stance the petitioner since was not promoted/placed in the pay scale of Junior Assistant on 1.1.1996, he could not be permitted to retain this higher pay scale. In the present case the respondents have over looked a very vital aspect of the matter that the petitioner has been granted the higher pay scale on the completion of 10 years as per Annexure R-2/2 dated 23rd July, 1990 and the same could not be denied to him after coming into force of the new rules. It is settled law by now that though the amendments to the Recruitment and Promotion Rules governing conditions of service could be carried out retrospectively but the vested or acquired rights cannot be destroyed. In the present case, the respondents have reduced the pay of the petitioner by giving retrospective effect to Annexure PG dated 1.9.1998 to the detriment of the petitioner. The petitioner had prayed for quashing of Annexure PG to the extent it is contrary to Annexures PE and PF dated

9.1.1998 and 20.1.1998. The Court is of the prima facie opinion that Annexure PG dated 1.9.1998 is unconstitutional to the extent whereby the rights of the petitioner and similarly situate persons have been impaired. The rights of the petitioner and similarly situate persons have crystallized on the basis of the Himachal Pradesh Civil Services (Revised Pay) Rules, 1990 read with Annexures PE and PF dated 9.1.1998 and 20.1.1998. These rights cannot be permitted to be impaired by the respondents by giving retrospective effect to Annexure PG dated 1.9.1998. 14 Their Lordships of the Hon’ble Supreme Court in B.S.Yadav and others versus State of Haryana and others, 1980 (Supp) SCC 524 have held that though the Governor while exercising the legislative power under the proviso to Article 309 of the Constitution of India, it is open to him to give retrospective operation to the rules made under that provision, however, the date from which the rules are made to operate must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period. Their Lordships have held as under: “The amended Rule 12, as in force in Punjab, lays down the length of continuous service in a cadre post as the guiding criterion for fixing seniority. That rule was notified by the Governor on December 31, 1976 and was given retrospective effect from April 9, 1976. Since the Governor exercises a legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears to us that the retrospective effect was given to the rules from April 9, 1976 for the mere reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab. The notification issued by the Governor on December 31, 1976, will therefore, operate on future appointments or promotions made after that date and not on appointments or promotions made 15 before that date. The seniority of all officers appointed or promoted to the Superior Judicial Service. Punjab before Dec. 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without applying the rule of rotation. The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date. In so far as we see, Judicial Officers from Serial No. 1 to 36 mentioned in Annexure P-I to the Punjab Writ Petition, that is beginning with Shri J. S. Chatha and ending with Shri Hardev Singh were appointed or promoted prior to December 31, 1976. Those from Serial No. 37 to Serial No. 43, that is beginning with Shri G. S. Kalra and ending with Shri H. L. Garg, were appointed or promoted after December 31, 1976. The validity of the notification dated December 31, 1976 was not seriously challenged before us, apart from its retrospectively. We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.” The Constitution Bench of the Apex Court in State of Gujarat versus Raman Lal Keshav Lal, AIR 1984 SC 161 has held that though 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 dos and dont’s of the Constitution, neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. Their Lordships have further held law must satisfy requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. Their Lordships have held as under: “The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly 16 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 don'ts of the Constitution neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say twenty years ago the parties had no rights therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. A Legislature cannot legislate today with reference to a situation that obtained twenty years, ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in B. S. Yadav v. State of Haryana, (1981) 1 SCR 1024 : (AIR 1981 SC 561) Chandrachud, C. J. speaking for the Court. "Since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But that date from which the rules are made to operate must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case". Today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a today and making retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot 17 become valid by being made retrospective. Past virtue, (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view, that the Gujarat Panchayats (Third Amendment). Act, 1978 is unconstitutional, as it offends Articles 311 and 14 and is arbitrary and unreasonable. We have considered the question whether any provision of the Gujarat. Panchayat (Third Amendment) Act, 1978 might be salvaged. We are afraid that the provisions are so intertwined with one another that it is well nigh impossible to consider any life saving surgery. The whole of the Third Amendment Act must go. In the result the Writ Petitions Nos. 4266-70 are allowed, with costs quantified at Rs. 15,000/-. The directions given by the High Court, which we have confirmed, should be complied, with before June 30,

1983. In the meanwhile, the employees of Panchayats covered by the appeal and the Writ Petitions will receive a sum of Rs. 200/- per month over and above the emoluments they were receiving before February 1,

1978. This order will be effective from February 1, 1983. The interim order made, on February 20, 1978 will be effective up to January 31, 1983. The amounts paid are to be adjusted later.” The Apex Court in Ex-Capt. K.C. Arora and another versus State of Haryana and others (1984) 3 SCC 281 have held that taking away the accrued rights of the petitioners by making amendment of the rules with retrospective effect was not permissible. Their Lordships have considered the entire case law succinctly as under: “For the petitioners it was contended that the benefits acquired could not be taken away by an amendment with retrospective effect. It was further contended that the amendment was discriminatory and retrospectivity given to the provisions of the Amending Act could not cure the discrimination introduced by the 18 Act and sought to be perpetuated by it. In support of this contention reliance was placed upon Harbhajan Singh v. State of Punjab, (1977) 2 Serv LR 180 : (1977 Lab IC 1809) (Punj & Har) (FB). In that case the question that fell for consideration before the Constitution Bench of the Punjab and Haryana High Court was regarding the interpretation of R. 3(iii) (cc) (ii) of the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies) in Punjab Civil Service (Judicial Branch) (First Amendment) Rules, 1976. The Demobilised Indian Armed Forces Personnel (Reservation of Vacancies) in the Punjab Civil Service (Judicial Branch) Rules, 1969 had been repealed and the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies) in the Punjab Civil Service (Judicial Branch) Rules, 1975 as amended were in force and these excluded from the category of released Armed Forces Personnel persons who had joined a civil service of the Union or a State or a civil post tinder the Union or a State after their release from the Armed Forces of the Union. The Court dealing with the question observed (at p. 1811) : "Now the rule-making authority must have been aware that a competitive examination for appointment to the service had been held under the old rules and appointments were yet in the offing. Surely, the rule- making authority did not intend to exclude from appointment candidates who were eligible under the old rules but became ineligible by reason of an amendment of the rules made after the process of selection had almost reached a final stage. The amendment did not in any manner touch the qualifications of the candidates. Had the amended rule been in force from the beginning, persons in the position of the petitioner might not have accepted any employment and preferred to wait for selection and appointment to the Punjab Civil Service (Judicial Branch). Are they to be penalised by barring their entry into the Punjab Civil Service (Judicial Branch) because they accepted employment at a time 19 when acceptance of such employment was not a bar to appointment to the service? We do not think that we will justified in attributing such an unreasonable intention to the rule-making authority. In our view, the only reasonable interpretation of the amended rule, consistent with the prevailing situation is to hold that only those persons who having joined the service of the Union or the State or a post under the Union or the State previously continued to hold the post on the date of the coming into force of the rule are excluded from appointment to the Punjab Civil Service (Judicial Branch). The expression Joined or joins' must be given a reasonable interpretation in the context of the situation and we think that our interpretation does not strain the language or attributes unreasonableness to the rule-making authority. In that view the petitioner cannot be said to be ineligible for appointment." Next reliance was placed upon Ex-Major N. C. Singhal v. Director General, Armed Forces Medical Service, AIR 1972 SC 628 : (1972 Lab IC 342). In that case the conditions of service of the appellant were governed by paragraph 13 of the Army Instruction No. I/S of 1954 and his previous full pay commissioned service should have been taken in the matter of 'ante- date' for the purpose of his pay. The conditions of. service were, however, sought to be altered by Army Instruction No. 176 of 1965 to the prejudice of the appellant. This Court held that the conditions of service in this regard were not liable to be altered or modified to the prejudice of the appellant by a subsequent administrative (Army?) instruction which was given retrospective effect from 26th October, 1962. Reliance was also placed upon State of Mysore v. M. N. Krishna Murthy, (1973) 2 SCR 575 : (1973 Lab IC 791). In that case also the rules of 1959 had been amended which sought to disintegrate the service which had been integrated. This Court held that such amendment made for the purpose of justifying the illegal 20 promotion made, in the teeth of the protection conferred by Articles 14 and 16(1) of the Constitution of India upon Indian citizens in Government service, could not be upheld. The power of making rules relating recruitment and conditions of service under the proviso to Article 309 could not be used to validate unconstitutional discrimination in promotional chances of Government servants who belonged to the same category. Shri Mahajan appearing for respondent No - I in reply on the other hand contended that the rules made under the proviso to Article 309 of the Constitution are legislative in character and, therefore, can be given effect retrospectively. In support of his submission he counted upon Raj Kumar v. Union of India, (1975) 3 SCR 963 : (1975 Lab IC 669). He also relied on Wing Commander, J. Kumar v. Union of India, (1982) 2 SCC 116 : (1982 Lab IC 1586). In that case a contention was raised that the impugned rule not having been specifically declared to be retrospective in operation, its provisions cannot be applied to the appellant inasmuch as he had been inducted into the R and D cadre long prior to the promulgation of the new rules. This Court dealing with the point observed (at p. 1596) : "We have already found that, as a matter of fact the practice generally followed the R and D Organisation even prior to the promulgation of the impugned rules was to reckon seniority with reference to the date of attainment of the rank of substantive Major /equivalent. Even otherwise, when a statutory rule governing seniority is issued in respect of a service, the said rule would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the rule in future, there is no element of retroactivity involved. Of course, the rules will not operate to deprive any person of promotions already earned the past, but, for purposes of future 21 promotions and seniority the department, principles laid down impugned rule will necessarily govern all the personnel alike." This case instead of supporting the contention of Shri Mahajan goes to strengthen the contention raised on behalf of the appellant and the petitioners. Much emphasis was laid by Shri Mahajan on the case of B. S. Vadera v. Union of India, (1968) 3 SCR 575 : (1969 Lab IC 100). In that case the petitioners, who were working as Assistants, were reverted as Upper Division Clerks in 1967 by the operation of Railway Board's Secretariat Clerical Service (Reorganisation) Scheme. The said scheme was framed on February 5, 1957 but was brought into effect from December 1, 1954. Certain modifications to the scheme relating to the manner of filling up of permanent and temporary vacancies in Grade I of the Service were made in 1963. The petitioners challenged the orders of reversion as illegal inasmuch as their promotion as Upper Division Clerks and later as Assistants had been on a permanent basis and could not be disturbed and that the scheme as well as the various orders passed by the respondents were violative of Articles 14 and 16 of the Constitution, that the Railway Board had no power in law to frame either the scheme or to modify the scheme so as to have retrospective effect from December 1, 1954, This Court held that the ranking given to the petitioners as a result of which the impugned orders of reversion were passed was in accordance with the scheme as modified in 1963, and once it is held that the petitioners did not satisfy the requirement of the scheme for being retained as Assistants, there was no question of any discrimination under Article 14 or violation of Article 16, and that the Indian Railway Establishment Code had been issued by the President in exercise of the powers vested in him by the proviso to Article 309 of the Constitution. Rule 157 of the Code gives the Railway Board full powers to make rules of general application to non-gazetted railway 22 servants under their control, and the power to make rules with retrospective effect cannot be denied to the Railway Board. Accordingly, the scheme framed by the said Board in 1957 could be made retrospectively effective from December 1, 1954. This case undoubtedly supports Shri Mahajan in his contention that the rules can be made with retrospective effect and there is nothing wrong in such a rule. This case, however, did not deal with the point specifically raised in the present case. The question, however, has been pointedly considered recently by a Constitution Bench of this Court in State of Gujarat v. Raman Lal Keshav Lal Soni, (1983) 2 SCC 33 : (1983 Lab IC 391). In that case the Gujarat Panchayats Service was initially constituted soon after the passing of the Gujarat Panchayats Act. There were three cadres : the district cadre, the taluca cadre and the local cadre. Secretaries, Officers and servants of the old village panchayats under the Bombay Village Panchayats Act, 1958 became secretaries, officers and servants of the new gram panchayats under Section 325 (2) (x) of the Gujarat Panchayats Act, 1961. Talatis and kotwals, who were government servants were secretaries and officers of the old village Panchayats under the Bombay Village Panchayats Act and so they became secretaries and officers of the new gram panchayats under the Gujarat Panchayats Act, 1961. Some municipalities constituted for municipal districts and municipal boroughs under the Bombay District Municipal Act and the Bombay Municipal Boroughs Act, as applied to areas in the State of Gujarat, were converted into Gram and Nagar Panchayats under Section 307 of the Gujarat Panchayats Act and all officers and servants in the employ of such municipalities became officers and servants of interim panchayats and allocated to the panchayat service. Thus, secretaries and officers of dissolved municipalities also became secretaries and 23 officers of Gram and Nagar Panchayats, District Local Boards constituted under the Bombay Local Boards Act stood dissolved on the passing of the Gujarat Panchayats; Act and all officers and servants in the employment of the Board were deemed to be transferred to the service of the successor District Panchayats under Section 326 of the Gujarat Panchayats Act. Also allocated the panchayat service were government servants who are transferred panchayats under Section 157 and such other officers and servants employed in the State service as were necessary. All these Secretaries, Officers and servants became members of a service under the State as soon as they were allocated to the panchayats; service. But, by the Amending Act, secretaries, officers and servants of Gram and Nagar Panchayats who were allocated to the panchayats service from the ranks of the ex- municipal employees were sought to be meted out differential treatment from the other members of the panchayats service, more particularly the secretaries, officers and servants of Gram and Nagar Panchayats who were drawn from the ranks of secretaries, officers and servants of old village panchayats, that is, the Talatis and Kotwals. Their, status as members of a service under the State was to go with no option to them. Retrospectivity was sought to be given to the Amending Act so that they could not claim that they were ever government servants and so could not be made to cease to be government servants and so that they could not claim that they were singled out for differential treatment, for, if they were never in the panchayat service, they could not complain of being taken out of the panchayat service. Brother O. Chinnappa Reddy speaking for the Court emphatically observed (Paras 51-52) : "Now, in 1978 before the Amending Act was passed, thanks to the provisions of the principal Act of 1961, the ex-municipal employees who had been 24 allocated to the panchayat service as Secretaries, Officers and servants of Gram and Nagar Panchayats, had achieved the status of government servants. Their status as government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Art. 311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Article 14 of Constitution. All attempt was made to justify the purported differentiation on the basis of history and ancestry, as it were. It was said that Talatis and Kotwals. who became Secretaries, Officers and servants of Gram and Nagar Panchayats were government servants, even to start which, while municipal employees who became such secretaries, officers and servants of Gram and Nagar Panchayats were not. Each carried the mark or the 'brand' of his origin and a classification on the basis of the source from which they came into the service, it was claimed, was permissible. We are clear that it is not. Once they had joined common stream of service to perform the same duties it is clearly not, permissible to make classification on the basis of their origin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Art. 311 and Article 14 that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile municipal employees never became members of a service under the State. Can a law be made to destroy today's accrued constitutional rights by artificially reverting to a situation which existed 17 years ago? No. The legislation is pure and simple, self deceptive, if we may use such an expression with reference to a legislature made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing 25 laws but since the laws are made under a written Constitution, and have to conform to the do's and dont's the Constitution, neither prospective retrospective laws can be made so as to contravene fundamental rights. The law must satisfy requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had rights, therefore, requirements of Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history......Today's equals cannot be made unequal by saying that they were unequal 20 years ago and we will restore that position by making a law today and making it retrospective, constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective, Past Virtue, (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 311 and 14 and is arbitrary and unreasonable." In view of this latest pronouncement by the Constitution Bench of this Court, the law appears to, be well settled and the Haryana Government cannot take away the accrued rights of the petitioners and the appellants by making amendment of the rules with retrospective effect.” 26 Their Lordships in T.R. Kapur and others versus State of Haryana and others, 1986 (Supp) SCC 584 have held that though the rules can be made retrospective but the benefits acquired under the existing rules cannot be taken away. Their Lordships have held as under: “Shri Shanti Bhushan, learned counsel petitioners has put forward a three fold contention. First of these submissions is that the impugned notification which purported to amend R. 6(b) of the Class I Rules with retrospective effect from July 10, 1964 making a degree in Engineering essential for promotion to the post of Executive Engineer in Class I service constitutes a variation in the conditions of service applicable to officers belonging to Class II service who are diploma- holders like the petitioners prior to the appointed day, i.e., November 1, 1966, to their disadvantage as it renders them ineligible for promotion to the post of Executive Engineer in Class I service was ultra vires the State Government having been made without the previous approval of the Central Government as enjoined by the proviso to S. 82(6), Punjab Reorganisation Act, 1966. It is urged that any rule which affects the promotion of a person relates to his conditions of service, although mere chances of promotion may not be. The contention, in our opinion, must prevail. The second is that it was not permissible for the State Government to amend R. 6(b) of the Class I Rules with retrospective effect under the proviso to Art. 309 of the Constitution so as to render ineligible for promotion to the post of Executive Engineer in Class I service, the members of Class II service who are diploma-holders although they satisfy the condition of eligibility of eight years' experience in that class of service. It is said that the unamended R. 6(b) conferred a vested right on persons like the petitioners which could not be taken away by retrospective amendment of R. 6(b). The third and the last submission is that the action 27 of the State Government in issuing the impugned notification making retrospective amendment of R. 6(b) of the Class I Rules was wholly arbitrary, irrational and mala fide and thus violative of Arts. 14 and 16(l) of the Constitution. It is submitted impugned notification was calculated to circumvent the direction given by this Court in its order dated February 24, 1984 on the basis of the undertaking given by the learned Additional Solicitor General that the State Government would consider the cases of all eligible officers belonging to Class II service for promotion to the Class I service. It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Art. 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect : B. S. Vadhera v. Union of India, (1968) 3 SCR 575 : (AIR 1969 SC 118), Raj Kumar v. Union of India, (1975) 3 SCR 963: (AIR 1975 SC 1116), K. Nagaraj v. State of A.P., (memorandum) dated 25-7-1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the appellant from Rs. 190/-to Rs. 181/- w.e.f. 18-12-

1970.” Consequently, the writ petition is allowed. Annexures PH dated

6.10.1998, PJ dated 18/19.10.2001 and PL dated 16.4.2004 are quashed and set aside. Rule 1 (1) of the Himachal Pradesh Civil Services (Revised Pay) (First Amendment) Rules, 1998 read with note appended to item No.2 to Second Schedule are also quashed being discriminatory, unconstitutional, arbitrary and violative of Article 14 of the Constitution of India. The petitioner is held entitled to pay scale of Rs. 5000-8100 with effect from 28.1.1997 with all consequential benefits. There shall be no order as to costs. July 10, 2008 *awasthi* (Rajiv Sharma ), J. 35