IMPORTANT POINTS
Rules made u/Art. 309 (Proviso) can be amended with retrospective effect.
Only vested constitutional right cannot be taken away by amendment of rules.
In case of conflict, law prevails over equity.

Headnote:(a) Constitution of India – Article 226 – High Court quashing the rules without service of writ petition on respondent, and on alleged admission of an advocate who had no power or instructions – Not permissible. (Paras 4 and 5)
        (b) Service Law – Recruitment on promotion – When rules are amended and new rules are put in place, posts cannot be allowed to be filled in accordance with obsolete rules. (Para 11)
        (c) Constitution of India – Article 309, Proviso – Rules made u/Art. 309 proviso can be amended with retrospective effect. (Paras 12 and 20)
        AIR 1975 SC 1116; AIR 1958 SC 468; AIR 1961 SC 1534; AIR 1961 SC 1486; AIR 1975 SC 2037; AIR 1992 SC 2084; (2007) 10 SCC 402 – Relied upon
        (d) Words and phrases – Vested right – Only vested constitutional right cannot be taken away by amendment of rules. (Paras 17 and 19)
        (1997) 6 SCC 623; AIR 1954 SC 158; AIR 1966 SC 764; AIR 1958 SC 452; AIR 1980 SC 271; AIR 1979 SC 1972 – Relied upon
        (e) Judicial Review – Law and Equity – In case of conflict, law prevails over equity – Equity can only supplement the law, and not supplant it. (Para 22)
       Facts of the case:
        He recruitment rules and promotion rules of BSNL are under challenge in this case.
       Finding of the Court:
        Impugned judgment canot be sustained.
       Result : Appeals allowed.

JUDGMENT

Markandey Katju, J. —

Civil Appeal No. 1405 of 2007

1. This appeal has been filed against the impugned judgment and order dated 16.12.2005 in Civil Misc. Writ Petition No. 73843 of 2005 of the Division Bench of the Allahabad High Court.

2. Heard learned counsel for the parties and perused the record.

3. The respondents 1 to 9 herein, filed a writ petition before the High Court praying for quashing of the Recruitment Rules 2005 as well as the letters by which the writ petitioners were told to appear in the Limited Internal Competitive Examination for promotion to the post of Raj Bhasha Adhikari AD(OL) which was to be held under the supervision of the CGMT UP(East), Circle , Lucknow as well as issuing a writ of mandamus restraining the appellants herein from interfering in the working of the respondents as AD(OL) on their respective posts and to continue to pay them their salaries. The aforesaid writ petition was allowed by the impugned judgment and hence this appeal.

4. It was pointed out by learned counsel for the appellants that the impugned Raj Bhasha Adhikari Recruitment Rules 2005 were quashed by the High Court without service of any notice of the writ petition on the appellants (respondents 3 to 6 in the writ petition) and that too at the preliminary stage of admission on the basis of an alleged submission of a counsel who did not have any authority and Vaklatnama in his favour by the appellants and who had not been given any instruction to appear on their behalf. We agree with this submission.

5. When rules are challenged it is necessary to have the matter gone into in depth by inviting a counter affidavit and examining the matter in detail. A summary disposal of a writ petition by allowing it without even calling for a counter affidavit and quashing the rules, in our opinion, is totally against any established procedure of law.

6. Apart from the above, on merits also we are of the opinion that the writ petition deserved to be dismissed and was wrongly allowed.

7. Article 343(1) of the Constitution of India states that the official language of the Union of India shall be Hindi in Devnagari script. To fulfill the mandate of this provision the Government of India, Ministry of Communications, decided to have a Hindi Cell in each Central Government department and Central Government instrumentality with the object of promoting progressive use of Hindi in the official notings and communications. Accordingly, it framed Rules in 1983 under Article 309 of the Constitution. In 1983, there were 43 posts of Hindi Officers in the department and it was provided that 50% of the posts will be filled up by direct recruitment, 30% by promotion and 20% by transfer on deputation. The essential qualification for holding the post was Masters Degree in the concerned subject and 5 years’ experience of teaching, research, writing or journalism in Hindi. As far as promotions were concerned, it was stipulated that Hindi Translator Grade-I with 3 years’ regular service in the grade could be selected by a Departmental Promotion Committee in consultation with the Union Public Service Commission.

8. In April 1994, the Department of Telecommunications decided that since the subordinate units (Telecom Circles) were facing difficulties in filling up the posts as per the existing provisions, the posts of Hindi Officers may be filled up amongst the cadre of Hindi Translator Grade-I/Grade-II/Grade-III with 3, 5 or 8 years’ service respectively in the Circle/District concerned, failing which the posts may be filled up from amongst the Group ‘C’ cadres based on length of service possessing the qualifications in the Recruitment Rules.

9. On 1.10.2000, the Department of Telecommunications was reorganized with the formation of Bharat Sanchar Nigam Limited (in short ‘BSNL’) as a Government Company to take charge of the operations and maintenance of telecom and telegraph network of the entire country. The respondents herein after formation of BSNL were g

Click Here to Read the rest of this document

2011 Supreme(SC) 418

IMPORTANT POINTS Rules made u/Art. 309 (Proviso) can be amended with retrospective effect. Only vested constitutional right cannot be taken away by amendment of rules. In case of conflict, law prevails over equity.

Cases Referred (12)

IMPORTANT POINTS
Rules made u/Art. 309 (Proviso) can be amended with retrospective effect.
Only vested constitutional right cannot be taken away by amendment of rules.
In case of conflict, law prevails over equity.