1. Seniority dispute between direct recruits and promotees in engineering services — enactment of retrospective legislation to regulate service conditions and nullify judicial mandamus. (Para 2 , 3 , 19 , 29 , 40 , 73 )
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1997 Supreme(SC) 940
SUPREME COURT OF INDIA
G.B.Pattanaik, K.Ramaswamy, S.Saghir Ahmad, JJ.
S.S.Bola
Versus
B.D.Sardana
Case No., 422 of 1993, 423 , 24 , 1448 , 49 , 1452 , 1453 of
Date of Decision, 7/11/97
Advocates Appeared: Ahmed Fazlin, Bhatt N.N., Dhavan Rajeev, Goel Adarsh, Goel Sudershan, Jain Apama Rohatgi, Lal Jinandra, Malhotra Prem, Malik Jasbir, Manohar P.K., Mehta Dhruv, Mehta S.K., Patel S.C., Puri P.N., Rohatgi K.B., Rohtagi K.B., Sachar Rajinder, Sardana B.D., Shetye N.B., Singh Mahabir, Thakur D.D., Tulsi K.T.S., Verma S.
Important Points
The legislature can render a judicial decision ineffective by enacting a valid law that fundamentally alters the legal basis of the judgment. Retrospective legislation regulating seniority is permissible as seniority is an interest, not a vested right, provided it is within legislative competence and doesn't violate fundamental rights.
Subject
Service Law - Seniority and Promotion
Act Referred
CONSTITUTION OF INDIA: Art.13, Art.32, Art.246, Art.316, Art.226, Art.245, Art.141, Art.227, Art.136, Sch.7 List.2 Entry.41, Art.50
PUNJAB SERVICE OF ENGINEERS IRRIGATION BRANCH CLASS I SERVICE RULES: R.5(2), R.12, R.2(1)(2)(c)
PUNJAB SERVICE OF ENGINEERS, CLASS I, PWD PUBLIC AND ROADS BRANCH RULES: R.12, R.5(2), R.3
PUNJAB SERVICE OF ENGINEERS IRRIGATION BRANCH CLASS I SERVICE RULES: R.5(2), R.12, R.2(1)(2)(c)
PUNJAB SERVICE OF ENGINEERS, CLASS I, PWD PUBLIC AND ROADS BRANCH RULES: R.12, R.5(2), R.3
Headnote
Constitution of India,1950 – Article 309,245,312 and 141 - (Buildings and Roads Branch), (Public Health Branch) and (Irrigation Branch) Rules – Rule 6,7,11(1),12(3),2(1),2(12)(a) - C.P. Local Self-Government Act, 1920 – Section 51 - Bombay Provincial Municipal Corporation Act, 1949 – Section 152-A - Mysore State Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 - Legislative intervention - Regulate conditions of service - Appeals and transfer cases are wrapped up of complex facts interwoven with diverse principles in service jurisprudence, compounded by legislative intervention impinging upon judicial review by enacting Act 20 of 1995 to regulate conditions of service of persons appointed to Haryana Service of Engineers, Class I, Public Works Department Buildings and Roads Branch, Public Health Branch and Irrigation Branch respectively - Said Act 20 of 1995 (for short "the Act") came into force with effect - It amended and repealed Haryana Service of Engineers, Class I, PWD (Buildings and Roads Branch), (Public Health Branch) and (Irrigation Branch) Rules, Irrigation Branch by Ordinance 6 of 1995. The latter repealed the Punjab Service of Engineers, Class I, PWD (Buildings and Roads Branch), (Public Health Branch) Rules, 1960 and (Irrigation Branch) Rules, 1961 - Act was given retrospective effect date on which State of Haryana was formed by bifurcation of former State of Punjab - Cases have their chequered history - On date of formation of State, respective Services were manned by and constituted of ten promotee-officers allotted from the former State of Punjab – Held, learned Judges have not focussed their attention on difference in rules meant for the Irrigation Branch and the Rules meant for the Public Health Branch and Buildings and Roads Branch. The impugned judgment, therefore, passed by division bench of Punjab and Haryana High court is erroneous and cannot be sustained - But as has been stated earlier it is not necessary to delve into question in a more detailed manner since Act having come into force and Act being made effective retrospectively date on which State was formed, inter se seniority has to be determined in accordance with provisions of the Act - Consequently, judgment of Punjab and Haryana High court in LPAs is set aside and State is directed to redetermine inter se seniority of members of Service belonging to Irrigation Branch in accordance with provisions of Act - Civil case are disposed of accordingly - In the ultimate result, therefore, court hold that Haryana Act 20 of 1995 is intra vires except part of Section 25 which has been held to be ultra vires - Impugned judgments of Punjab and Haryana High court are set aside - State government is directed to reconsider question of seniority of employees of three Branches under Act within a period of six months from today and to give consequential promotion on that basis soon thereafter - All appeals and the transfer cases are disposed of accordingly.
Legal Category Hierarchy
- constitutional law
- administrative law
- practice and procedure
Table of Contents
2. Direct recruits challenge retrospective legislation as colourable exercise of power and usurpation of judicial review — State contends plenary power to amend laws retrospectively to remove inequities. (Para 21 , 22 , 24 , 25 , 172 , 173 )
3. Judicial review is a basic feature — legislature cannot directly overrule judicial decisions or nullify mandamus by legislative fiat without removing the legal base. (Para 26 , 83 , 85 , 101 , 102 , 126 , 127 , 148 )
4. Retrospective legislation cannot nullify a final judicial mandamus or declaration of law by mere legislative fiat; it must fundamentally alter the legal base. (Para 102 , 126 , 148 , 153 )
5. Retrospective operation of the Act declared unconstitutional — State directed to redetermine seniority in accordance with previous judicial mandates. (Para 153 , 154 )
6. Can the legislature nullify a court's mandamus via retrospective legislation?
No, the legislature cannot directly overrule a judicial decision or nullify a mandamus by mere declaration. It can only render a decision ineffective by enacting a valid law that fundamentally alters the legal base upon which the decision was founded. (Para 102 , 126 , 148 )
7. What is the status of judicial review in the Indian Constitution?
Judicial review is a basic feature of the Constitution, entrusted to the Supreme Court and High Courts to maintain the balance of power and protect fundamental freedoms against legislative or executive excesses. (Para 83 , 85 , 148 )
8. Does a government servant have a vested right to a specific position in a seniority list?
No, a particular position in a seniority list is not a vested or accrued right. Losing places in a seniority list does not amount to reduction in rank or a violation of constitutional protections. (Para 198 , 199 , 200 )
9. What constitutes colourable legislation?
Colourable legislation occurs when a legislature lacks the power to legislate on a matter but pretends to act within its competence to achieve an objective that is prohibited or beyond its jurisdiction. (Para 132 )
10. How is seniority determined between direct recruits and promotees when a quota is prescribed?
Seniority is determined within the respective quotas. Promotees in excess of their quota occupy posts fortuitously and cannot claim seniority over direct recruits who are appointed within their own quota. (Para 143 , 144 , 153 )
JUDGMENT
K.RAMASWAMY
(1) APPLICATION/S for impleadment allowed.
(2) THESE appeals and transfer cases are wrapped up of complex facts interwoven with diverse principles in service jurisprudence, compounded by legislative intervention impinging upon judicial review by enacting Act 20 of 1995 to regulate the conditions of service of persons appointed to the Haryana Service of Engineers, Class I, Public Works Department Buildings and Roads Branch, Public Health Branch and Irrigation Branch respectively. The said Act 20 of 1995 (for short "the Act") came into force with effect from 13/11/1995. It amended and repealed the Haryana Service of Engineers, Class I, PWD (Buildings and Roads Branch), (Public Health Branch) and (Irrigation Branch) Rules, Irrigation Branch by Ordinance 6 of 1995. The latter repealed the Punjab Service of Engineers, Class I, PWD (Buildings and Roads Branch), (Public Health Branch) Rules, 1960 and (Irrigation Branch) Rules, 1961 (sic 1964 issued under proviso to Article 309 of the Constitution (for short "the Rules"). The Act was given retrospective effect from 1/11/1966, the date on which the State of Haryana was formed by bifurcation of the former State of Punjab.
(3) THE cases have their chequered history. On the date of formation of the State of Haryana, the respective Services were manned by and constituted of ten promotee-officers allotted from the former State of Punjab. All of them were from Haryana (erstwhile Punjab) Class II subordinate officers. The respective repealed Rules constituted Haryana Service of Engineers, Class I, PWD consisting of Buildings and Roads Branch, Public Health Branch and Irrigation Branch respectively which were governed by the statutory repealed Rules. The Class I service of Engineers consists of the Executive Engineers, Superintendent Engineers and Chief Engineers. Subsequently, the post of Engineer-in-Chief was added in the respective branches. The Assistant Executive Engineers are the feeder cadre to the said Class I service; they are drawn by way of direct recruitment. Haryana (erstwhile Punjab) Class II, Subordinate Service was also a feeder channel for appointment by promotion, as Executive Engineers and thereafter as Superintendent Engineers or Chief Engineers or Engineers-in- Chief, as the case may be. The respective repealed Rules and the Act contained a provision for appointment by transfer from any other State or central Service; however, none was appointed from that feeder channel. Therefore, these cases do not concern that group and it has now become a dried-up source. As stated, as on 1/11/1966, ten posts, each manned by promotee personnel, were allotted to the respective branches of Haryana Service of Engineers, Class 1. The Rules provided the ratio of recruitment in Buildings and Roads and Public Health Branches, viz., 50 to the direct recruits and 50 to the promotees. In the Irrigation Branch, for the first eight years, the ratio between promotees and direct recruits was 75 and 25 ; thereafter, it became 50:50 as in other two branches. Though the Rules provided for creation of the cadre posts every year under Article 3 read with Appendix A of the respective repealed Rules, the State failed to demarcate the cadre posts; nor did it operate the services in strict conformity with the respective quotas as per the repealed Rules. As usual, it led to acrimony between the promotees and the direct recruits; their inter se seniority, which is a perennial and unending source of litigation, has again given rise to these appeals and transferred writ petitions filed in the High court of Punjab and Haryana.
(4) THE usual endless acrimony for seniority, between promotees and direct recruits, when the former are interjected into the service due to lapse of regular direct recruitment and their passage into Class I service, is being met with turbulence for faculty (sic faulty) transposition channels. The unsuccessful writ petitions filed in the Hi
