2004 Supreme(Gau) 360
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari and Tinlianthang Vaiphei, JJ.
Malin Kanta Paul
Vs.
State of Tripura
Writ Appeal No. 128 of 2002 in WP(C) No. 62 of 2000
Decided On: 21.05.2004
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: D.K. Biswas, Adv.
For Respondents/Defendant: T.K. Roy, A.G. and S. Chakraborty, Adv.
Headnote:
[MAIN LEGAL POINT] The power to amend the conditions of service retrospectively include the power to take away or abridge, with retrospective effect, those rights, which have already accrued to the Government employee under the existing rules and before the amendment was introduced.
Fact of the Case:
The appellant, a retired physical instructor, filed a writ petition challenging the notification issued by the State Government, which amended the Central Civil Services (Pension) Rules, 1972, as adopted by the State Government, by incorporating Rule 55A thereto and defining Dearness Relief and its entitlement to pensioners. The appellant claimed that the notification was void, illegal and ultra vires and sought a declaration that the State Government was bound to pay Dearness Relief to its pensioners at the same rate and subject to such conditions as the Central Government may specify from time to time in terms of the directions contained in the judgment and order dated 22.4.1997, passed in Civil Rule No. 259/1995.
Finding of the Court:
The Court held that the impugned notification, dated 27.10.1998, is within the authority of the State to issue inasmuch as the State has power to amend the terms and conditions of service of an employee. But in view of the fact that the factual and legal foundation of the Civil Rule No. 259/1995 have not been altered so fundamentally by the impugned notification that the mandamus issued therein has become infructuous and/or inexecutable, the State is bound to carry out the directions contained therein.
Issues: 1. Whether the State Government has the power to amend the conditions of service of its employees unilaterally? 2. Whether such amendment can be made with retrospective effect and if so, what is the extent of such powers? 3. Will the power to amend the conditions of service retrospectively include the power to take away or abridge, with retrospective effect, those rights, which have already accrued to the Government employee under the existing rules and before the amendment was introduced? 4. Whether the writ of mandamus, issued in a given case, can be superseded by the Government and if so, how and to what extent?
Ratio Decidendi: 1. The State Government has the power to amend the conditions of service of its employees unilaterally. 2. Such amendment can be made with retrospective effect. 3. The power to amend the conditions of service retrospectively includes the power to take away or abridge, with retrospective effect, those rights, which have already accrued to the Government employee under the existing rules and before the amendment was introduced. 4. The writ of mandamus, issued in a given case, cannot be superseded by the Government.
Final Decision: The Court set aside the impugned judgment and order dated 9.8.2002, passed in WP(C) No. 62/2000 and directed the State respondents to continue to abide by and follow the mandamus issued in Civil Rule No. 259/1995 and upheld in Writ appeal No. 330/97.
I.A. Ansari, J.
1. By the impugned judgment and order, dated 9.8.2002, passed in WP(C) No. 62/2000, the writ petition has been dismissed. Feeling aggrieved, the writ petitioner has, now, preferred the present appeal.
2. Can the terms and conditions of the service of a Government servant, unlike that of an employee in a private sector, be altered unilaterally by the statutory or constitutional authority concerned? If so, whether such alteration can be made with retrospective effect and if so, what is the extent of such powers ? Will the power to amend the conditions of service retrospectively include the power to take away or abridge, with retrospective effect, those rights, which have already accrued to the Government employee under the existing rules and before the amendment was introduced ? Whether the writ of mandamus, issued in a given case, can be superseded by the Government and if so, how and what extent ? What was the real question, which the WP(C) No. 62/2000, had raised for determination and whether the learned Single Judge has, on 9.8.2000, correctly disposed of the writ application ? Did Rule 55A, introduced in the Central Civil Services (Pension) Rules, 1972, as adopted, in the State of Tripura, by virtue of notification, dated 2.7.1972, issued by the Government of Tripura, vest in the Government servants any legal and/or fundamental right to receive Dearness Relief? What was the real controversy in Civil Rule No. 259/ 1995 ? Has the impugned notification, dated 27.10.1998, brought, now, any change to what was read and understood in Civil Rule No. 259/ 1995 ? How the said Pensioners' Association justify, in Civil Rule No. 259/1995, their demand for payment of Dearness Relief at the rate fixed by the Central Government and why did the Court issued Mandamus therein ? By virtue of the notification, dated 27.10.1998, published by the Government of Tripura, whether the Government of Tripura has altered the legal and factual foundations of the Writ of mandamus issued, on 22.04.1997, in Civil Rule No. 259/1995 and upheld, on 25.06.1997, in WA No. 330/97, and whether the mandamus, so issued, has become ineffective in consequence of the notification, dated 27.10.1998, aforementioned ? These are the moot questions, which this writ appeal has raised.
3. This appeal has a history. As history is not merely a collection of the events of the past, but a connecting-link between the past and the present, so is this appeal. We are, therefore, required to not merely assemble together the events of the past leading to the present appeal, but also to explore if there is a connecting-link between the events of the past and the present appeal and if so, whether the mandamus issued in the past still, notwithstanding the charges introduced presently, hold good.
4. The material facts and various stages, which have led to the present appeal, may be summarised as follows : -
(i) By a notification, dated 8.8.1978, the Government of Tripura adopted the Central Civil Services (Pension) Rules, 1972, in respect of the Government servants, "serving in connection with the affairs of the State of Tripura", subject, however, to certain modifications giving indication therein, inter alia, that the expressions "Central Government", "Central Service" and "Ministry of Finance, Government of India", occurring in the said Pension Rule, 1972, shall stand substituted by the expressions "State Government", "State Service" and "Finance Department, Government of Tripura", respectively.
(ii) The rate of Dearness Allowance available to the Government servants in the State of Tripura was same as the rate of the Dearness Relief applicable to the pensioners of the State. The Stage of Tripura had been issuing notifications from time to time declaring enhancement in the rate of Dearness Allowance and dearness Relief, but the rate and periodicity of such increase were not at par with the Central Government servant or pensioners. While the Central Government had been