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1990 Supreme(Bom) 198
IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
R.S. Jadhav others... Petitioners.
Versus
State of Maharashtra others... Respondents.
Writ Petition No. 313 of 1985 and Writ Petition No. 3196 of 1988, decided on 8-6-1990.
Advocates appeared :
Shankaranarayan, for petitioner.
P.K. Thakur with B.E. Patil, for respondents 1 to 3.
S.J. Deshmukh with Suresh Pakale, for intervenor.
Headnote:Article 309, Proviso-Amendment of Rules framed under Legislative powers-It cannot be amended by exercise of semi-executive powers.
The 1982 amendments are said to be an executive order. The very first factor negating this contention is the impermissibility of assuming that recourse would be had to a semi-executive power to amend rules framed under a purely legislative power. If the principal rules i.e. GRS 1965 be under Article 309 and that is undeniable the 1982 amendments which seek to after them, cannot but fall under the same classification. Next, unlike the Resolution of 1977, they come into force immediately in fact, that are retrospective effect as from 1 November 1977. Whatever other infirmities the 1982 amendments suffer from, they cannot be dubbed as executive orders falling under Article 166. The same goes for the 1987 Rules. It is described as being in exercise of the power under Article 309. This is not a mis-description or a colourable exercise of power for the rules in fact relate to recruitment and service conditions.
It is well settled that the service rules can be as much amended, as they can be made, under the proviso to Article 309 and that the power to amend these rules carried with it the power to amend them retrospectively. The power conferred by the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule-making power. The power to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. Therefore, the amendment made to the Fundamental Rules in the exercise of power conferred by Article 309, by which the proviso to rule 2 was deleted retrospectively, was a valid exercise of legislative power. The rules and amendments made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done, the exercise of the power cannot be 4"hallenged as locking in authority
Article 309 Proviso-Rule making" power-Non-publication in gazette of different GRS and Resolutions does not by itself exclude them from Article 309-Rules framed can be retrospective also.
2. Accounting constitutes a vital function of all State departments and offices. Prior to 1960 this function was attended to by sections of employees in each office or department of the Government. These employees possessed a more or less common basic knowledge of accounts. Regard being had to the institutional divide, the accounts knowing personnel were placed at a disadvantage. Avenues for promotion were few and far between. Some offices had a surplus of them and some a severe shortage. The Secretary to the Government, Finance Department, was the Head of Department vis-a-vis as many as seven offices and much of his time was taken by the routine required of such head. To solve the problem, Government decided upon the establishment of a Directorate of Account Treasuries (DAT). Details of the new-set-up were to be worked out by an Officer on Special Duty (OSD) in consultation with the Maharashtra Public Service Commission (MPSC). A Stenographer and Peon were provided to the OSD under the Govt. Resolution dated December 8, 1960 (1960 GR) and he was enjoined to submit his proposals expeditiously. The DAT was established vide Govt. Resolution dated 27 December, 1961 (1961 GR). Next came the Govt. Resolution 1965 (GR 1965) constituting the Maharashtra Finance and Accounts Service (MFAS) comprising five grades viz. the supertime scale. Class I. Senior Junior, Class II and Class III. The first four grades were to form part of the State Service, while the last was a subordinate service. The G.R. runs into 19 paragraphs, several Annexures and Appendices.
3. Annexure 'G' lays down the rules for an examination. Annexed to G are Appendices A B. Appendix C to G is the syllabus for the examination. The said examination is described as a 'departmental' examination for Class I, Senior Junior, and Class II grades. Of the G rules, the important ones are those numbered 3 to 7, both inclusive. Rule 3 says the examination will be compulsory for every incumbent of posts specified in Appendix A. Rule 4 enumerates the eligibles for the examination. Rules 5 and 6 make additions to the eligibles over and above those described in Rule 4. Rule 7 specifies the class exempted or entitled to exemption from passing the examination. The examination's role vis-a-vis the different streams in the service needs to be understood with reference to a time frame. Rule 7 as originally framed listed 5 classes entitled to exemption from the examination. One such class was of persons whose age exceeded 40 years on the date their liability to pass the examination commenced. Grant of exemption to them was to be considered by Government on merit, as and when necessary. Appointments to the service were to be made by the Director of Accounts Treasures by promotion or nomination. The promotees were to be from a select list of persons fit for promotion to the service. This list had to consist of those who had passed the examination (passers) or were exempted from passing it (exemptees). As to the nominees, they had to pass the examination within the two years period of probation. For the nominees, failure to pass the examination within the period of exemption including the extended period, would subject them to the penalty of discharge without notice. In relation to the promotees, the vacancies were to be in the ratio of 2 : 1 as between the passers and exemptees respectively. This ratio was varied to 1 : 1 for a short duration of two years as from 1 September, 1967.
4. Preparation of a select list and matters ancillary thereto were regulated by Govt. Resolution dated 16 September, 1969 (Seniority Rules). A Committee of three officers was to prepare the list. It was to be in two parts part I was to be of passers and part II of exemptees. The latter d
