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1988 Supreme(Gau) 82
GAUHATI HIGH COURT
J.Sangma, S.N.Phukan, JJ.
Sukumar Ghosh -Appellant
Versus
State of Tripura and Others -Respondent
Civil Rule Nos. 168, 189/82, 8/83 & 108 of 85
Decided On : 26-05-1988
S.Barman Roy, K.N.Bhattacharjee, D.K.Biswas, B.B.Deb
Revised rules framed under Article 309 of the Constitution cannot be applied retrospectively to affect vested rights acquired under existing rules.
Headnote:
SERVICE LAW - PROMOTION - REVISED RULES - APPLICABILITY - VESTED RIGHTS - CONDITIONS OF SERVICE - RETROSPECTIVE EFFECT - NORTH EASTERN AREAS (RE-ORGANISATION) ACT, 1971 - SECTION 66.
Fact of the Case:
Petitioners, Sub-Inspectors of Police, challenged the revised rules of 1981 for promotion to the post of Inspector of Police, arguing that they acquired a vested right to be considered for promotion under the 1962 rules and that the new conditions, including passing a pre-promotion examination, could not be applied retrospectively.
Finding of the Court:
The court held that the revised rules of 1981, which imposed additional conditions for promotion, could not be applied retrospectively to the petitioners as they had acquired a vested right to be considered for promotion under the 1962 rules. The court directed that the petitioners' cases for promotion be considered based on the old rules and their service records.
Issues: 1. Whether the revised rules of 1981 could be applied retrospectively to the petitioners who were appointed as Sub-Inspectors of Police prior to the notification of the new rules. 2. Whether the conditions imposed by the revised rules, including passing a pre-promotion examination, could affect the vested rights of the petitioners.
Ratio Decidendi: 1. The court relied on the principle that amendments to rules framed under Article 309 of the Constitution cannot take away vested rights with retrospective effect. 2. The court held that the revised rules of 1981, which imposed additional conditions for promotion, changed the conditions of service and affected the vested rights of the petitioners to be considered for promotion under the 1962 rules.
Final Decision: The court allowed the petitions to the extent that the revised rules of 1981 were held inapplicable to the petitioners. The court directed that their cases for promotion be considered based on the old rules and their service records, and that any petitioner found suitable for promotion be promoted notionally from a date prior to the promotion of their immediate junior.
By this common judgment and order we propose to dispose of 4 (four) writ petitions which were registered as Civil Rule Nos. 168, 189/82, 8/83 and 1080/85.
2. In Civil Rule 168/82 the petitioner was promoted to the post of Sub-Inspector of police in the year 1965; petitioner in writ petition 189/82 was promoted on 31.8.70; petitioner in Civil Rule 1/83 was promoted on 31.8.70; and 13 petitioners in Civil Rule No. 1080/85 were promoted during the period from 1973 to 1976. on 6.12.62 the then Chief Commissioner of the Union Territory of Tripura framed a set of rules under Article 309 of the Constitution for recruitment for the post of Police (Armed and un-Armed) (vide Annexure-1 to the writ petition in Civil Rule No. 168/82). According to said rule the method of recruitment to the said post of Inspector of Police was by promotion failing which by transfer/deputation and qualifications laid down for promotion was 3 years of service in the grade of Sab-Inspector of Police. By the North-Eastern Areas (Re-orgacisation) Act, 1971 on and from 21.1.1972 the new State of Tripera was established comprising the territories which were comprised in the Union Territory of Tripura. On 12.2.81 the Government of Tripura framed revised rules under Article 309 of the Constitution regarding the method of recruitment and the qualifications necessary for appointment to the post of Inspector of Police and according to the said Rules the method of recruitment was by promotion failing which by transfer/deputation and the qualification for promotion was 8 years in the grade of Sub-Inspector of Police and 'having passed pre-promotion examination as prescribed by the State Government and to be conducted by the Tripura Police Organisation/West Bengal Police Directorate'. The present petitioners have not been promoted to the post of Inspector of Police mainly on the ground that they have not appeared/passed the pre-promotion examination as laid down in the revised rules of 1981 though other Sub-Inspectors of Police who were similarly situated or who were junior have been promoted. Being aggrieved the petitioners have approached to this Court for appropriate writ/ directions.
3. The main contention of the learned counsel appearing for the petitioners is that the revised rules of 1981 could not be made applicable to the present petitioners as they acquired a vested right to be considered for promotion after putting in 3 years of service as Sub-Inspector of police under the Rules of 1962. It has also been urged that conditions of passing pre-promotion examination cannot be made applicable to the present petitioners as it was not a condition for promotion ender 1961 Rules. Mr. Barman Roy, learned Advocate General has submitted that under Article 309 of the Constitution the State Government is competent to frame rules giving retrospective effect and as such Rules of 1981 are applicable to the present petitioners. According to Mr. Barman Roy passing of pre-promotion examination is not a condition of service and as such no vested right of the petitioners have been taken away by the aforesaid Rules of 1981.
4. From the language of the notification dated 12.2.81 by which rules for appointment to the posts of Inspector of Police were framed, it is clear that the said rules were not given retrospective effect. Only question which needs our consideration is whether the said revised rules would apply to the persons who were appointed to the posts of Sub-Inspector of Police prior to 12.2.1981.
5. In T. R. Kapur and others vs. State of Haryana and others A. I. R. 1987 S.C. 415, it was held that 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, and that it is well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be The
