Shri OP Jhamb & Ors. v. Ms. Ritu Bahri, DAG,Haryana for the State

This order will dispose of CWP Nos.4205 of 1984 and CWP No.919 of 1985, as both the petitions involve common question of eligibility of Statistical Assistants for promotion to the posts of Assistant Employment Officers.

CWP No.4205 of 1984 has been filed by 36 petitioners, who are employed in the Directorate of CWP No.4205 of 1984 (O&M) 2 Employment, Haryana and are governed by The Punjab Employment (Class I and II) Service Rules, 1963 (for short, ‘the Rules’) seeking declaration that Statistical Assistants are not eligible for promotion as Assistant Employment Officers and consequential relief. CWP No.919 of 1985 has been filed by three petitioners for a declaration that their promotion to the posts of Assistant Employment Officer from the posts of Statistical Assistants was valid and judgment of this Court dated 18.2.1983 in CWP No.389 of 1976 (Shiv Lal Wahi v. The State of Haryana) was not binding on them as they were not party to the said writ petition.

Case of the petitioners in CWP No.4205 of 1984 is that under rule 9(a) (i) of the Rules, 25% of posts of Assistant Employment Officers are to be filled up from ‘ministerial staff’, which according to para 2.40 of the Punjab Civil Services Rules, Volume I Part I, meant Class III staff. As against this, on the basis of an executive decision in the year 1968, posts of Statistical Assistants were also included in the feeder cadre for promotion to the posts of Assistant Employment Officers, which was CWP No.4205 of 1984 (O&M) 3

challenged by filing CWP No.389 of 1976 (supra). The said petition was allowed vide judgment dated 18.2.1983. After the said judgment, Rule 9 was amended vide notification dated 12.6.1986 whereby quota for ministerial staff was reduced to 15% and 10% posts were to be filled up out of Statistical Assistants. Rules were made retrospective from 18.9.1968.

Contention raised in the petition which has been repeated by learned counsel for the petitioners is that the rules were bad to the extent of retrospectivity, as accrued right was sought to be affected by the amended rules. Reliance has been placed on judgment of the Hon’ble Supreme Court in Chairman, Railway Board and others v. C.R.Rangadhamaiah and others, AIR 1997 SC 3828.

In the written statement filed on behalf of the State, stand taken is that Statistical Assistants were also part of ministerial cadre as their duties were clerical and this was clarified by government decision. The said decision was not accepted in the judgment of this Court on the ground that such clarification was permissible only by CWP No.4205 of 1984 (O&M) 4 amending the rules. Accordingly, the amendment was given retrospective effect. No vested right was affected.

We have heard learned counsel for the parties. Only question is whether the petitioners had acquired a vested right to be promoted and whether the amendment was liable to be declared ultravires on the ground of retrospectivity.

Under the rules, the term ‘ministerial staff’ was not defined. There could, thus, be two views about the scope of the said expression. Though, this Court held that the said term did not include Statistical Assistants, in absence of specific rule to that effect, there was no legal bar to retrospective clarificatory amendment being made to define the said concept. Such an amendment could not be held to be arbitrary particularly when it was intended to restore the status quo as prevailing prior to the judgment of this Court by clarifying the scope of the expression ‘ministerial staff’. There was no bar to such amendment being retrospective. Admittedly, the petitioners had not been given promotion nor right of promotion as such had CWP No.4205 of 1984 (O&M) 5 accrued to them. In these circumstances, amendment cannot be held to be illegal.

In I.N. Saksena and Anr. v. State of Madhya Pradesh (1976) 4 SCC 750, it was observed in para 22:- “While, in view of this distinction between legislative and judicial functions, the Legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray, C.J. in Indira Nehru Gandhi v. Raj Narain ((1975) Supp SCC 1), the rendering ineffective of judgments or orders of competent Courts and Tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power. " CWP No.4205 of 1984 (O&M) 6

In Virender Singh Hooda and others, v. State of Haryana and another, (2004) 12 SCC 588, Paras 45,48, 49, 51 and 52, it was held that though legislature has no power to sit over court’s judgment, subject to its competence to make law, it can remove the basis which led to the court’s decision. Doing so is not an encroachment on the judicial power. The Legislature cannot by a bare declaration reverse or modify a judicial decision by exercising its plenary power. It can render a judicial decision ineffective by altering with retrospective effect conditions on which such decision was based. In doing so, even a vested right can be taken away unless taking away a vested right violates Article 14, 16 or any other constitutional provision. “45. 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 CWP No.4205 of 1984 (O&M) 7 validation it removes the defect which the Courts had found in the existing law.

46. 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 field, fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based (I.N. Saksena and Anr. v. State of Madhya Pradesh (1976) 4 SCC 750), In Saxena's case facts in brief were that the appellant attained the age of 55 years on 22nd August, 1963. On 28th February, 1963, by a memorandum, the State Government raised the age of compulsory retirement to 58 years. It, however, empowered the Government to retire an employee after the age of 55 years. This provision, however, was not incorporated in the statutory rules. On 11th September, 1963, the respondent passed an order retiring the appellant. The order of retirement of the appellant was quashed by this Court. The Government, however, amended the rules under which the CWP No.4205 of 1984 (O&M) 8 retirement age was raised to 58 years and the Government was empowered to retire the Government servant after completion of 55 years of age. By a deeming clause, the rules were made effective from March 1, 1963. By Act of 1967, the State Legislature validated the retirement of certain Government servants including the appellant, despite the judgment of this Court. Upholding the validity of 1967 Act, this Court held that adjudication of the rights of the parties according to the law enacted by the Legislature is a judicial function. In the performance of this function, the Court interprets and gives effect to the intent and mandate of the Legislature as embodied in the statute. On the other hand, it is for the Legislature to lay down the laws prescribing norms of conduct which will govern parties and transactions and to require the Court to give effect to that law. It was held that the rendering ineffective of judgments of Courts and Tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts…

48. 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, CWP No.4205 of 1984 (O&M) 9 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 by the State and to function as an appellate Court or Tribunal, which is against the concept of separation of powers. (Re: Cauvery Water Disputes Tribunal [1993 Supp (1) SCC 96 (II)]).

49. When a particular Rule or the Act is interpreted by a Court of law in a specified manner and the law-making authority forms the opinion that such an interpretation would adversely affect the rights of the parties and would be grossly inequitous and accordingly a new set of rules or laws is enacted, it is very often challenged on the ground that the Legislature has usurped the judicial power. In such a case the Court has a delicate function to examine the new set of laws enacted by the Legislature and to find out whether in fact the Legislature has exercised the legislative power by merely declaring an earlier judicial decision to be invalid and ineffective or the Legislature has altered and changed the character of the legislation which ultimately may render the judicial decision ineffective {S.S. Bola and Ors. v. B.D. Sardana and Ors. [(1997) 8 SCC 522. CWP No.4205 of 1984 (O&M) 10 Xx xx

51. In State of Haryana and Ors. v. Karnal Co-op. Farmers' Society Limited and Ors. [(1993) 2 SCC 363], after noticing various decisions, this Court concluded that a Legislature while has the legislative power to render ineffective earlier judicial decisions, by removing or altering or neutralizing the legal basis in the unamended law on which such decision were founded, even retrospectively, it does not have the power to render ineffective the earlier judicial decision by making a law which simply declares the earlier judicial decisions as invalid or not binding for such power if exercised would not be a legislative power but a judicial power which cannot be encroached upon by a Legislature under our Constitution. Whether retrospective or prospective the law has to be consistent with the provisions of Part III of the Constitution.

52. It is not possible to accept the contention that vested rights cannot be taken away by Legislature by way of retrospective legislation. Taking away of such right would, however, be impermissible if violative of Articles 14, 16 and any other constitutional provision. In State of Tamil Nadu v. Aroorran Sugars Ltd. [(1997) 1 SCC 326], this Court held that whenever any CWP No.4205 of 1984 (O&M) 11 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 had no power to legislate retrospectively, because in that event a vested right is affected.”

Reference may also be made to judgment of the Hon’ble Supreme Court in B.S.Vadera v. Union of India and others, AIR 1969 SC 118, para 24. Only restriction on giving retrospective effect to the rules is if it is arbitrary. (State of Gujarat and another v.Raman lal Keshav Lal Soni and others, AIR 1984 SC 161, para 52).

Accordingly, we do not find any merit in CWP No.4205 of 1984 and the same is dismissed.

As regards CWP No.919 of 1985, contention raised is that in the judgment of this Court in Shiv Lal CWP No.4205 of 1984 (O&M) 12 Wahi (supra), orders dated 23.5.1966, Annexure P.2 and

14.9.1975, Annexure P.3 were not considered. However, in view of order in CWP No.4205 of 1984, upholding retrospective amendment nullifying effect of judgment in Shiv Lal Wahi (supra), this petition has become infructuous and is disposed of as such. March 23, 2010 ‘gs’ (Adarsh Kumar Goel) Judge (Alok Singh) Judge