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2011 (4) TMI 1464 - SC - Indian LawsWhether the Notification issued by state making any declaration can take away the accrued rights of the Appellant - In Present case, the appellant had joined as a member of the Commission vide order dated 29.6.2006 under the Act 1993. The State of U.P. issued Notification dated 28.5.2008 to the effect that appellant ceased to hold the office as a Member of the Commission. The appellant challenged the said Notification by filing Writ Petition mainly on the grounds that he had been appointed for a tenure of five years and that period could not be curtailed. The High Court dismissed the writ petition. Hence, this appeal. HELD THAT - A Constitution Bench of this Court in Chairman, Railway Board Ors. v. C.R.Rangadhamaiah Ors 1997 (7) TMI 662 - SUPREME COURT observed the expressions - vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. Therefore, we do not have any hesitation to declare that the Notification dated 28.5.2008 is patently illegal.
Issues Involved:
1. Retrospective application of the Amendment Act 2006. 2. Eligibility of the appellant under the amended provisions. 3. Validity of the Notification dated 28.5.2008. 4. Non-joinder of necessary parties. 5. Relief and costs awarded. Detailed Analysis: 1. Retrospective Application of the Amendment Act 2006: The appellant argued that the Amendment Act 2006 could not be applied retrospectively to curtail his tenure as he was appointed before the amendment. The Court emphasized that the Amendment Act 2006 did not expressly or by necessary implication suggest retrospective application. The principle that "a statute is presumed to be prospective unless it is expressly or by necessary implication made to have retrospective operation" was upheld. The Court concluded that the amendment would apply prospectively, and the appellant's rights were protected under Section 6 of the General Clauses Act, 1897. 2. Eligibility of the Appellant Under the Amended Provisions: The appellant contended that his experience as an Additional District Judge should be considered equivalent to that of a District Judge under the Amendment Act 2006. The Court rejected this argument, stating that the posts of District Judge and Additional District Judge are neither inter-changeable nor inter-transferable, despite being part of a single cadre. The Court held that the legislative intent was clear in prescribing a minimum of seven years' experience as a District Judge, and this could not be interpreted to include experience as an Additional District Judge. 3. Validity of the Notification Dated 28.5.2008: The Court found that the Notification declaring the appellant ceased to hold office was in violation of Section 26 of the Act 1993, which protected the terms and conditions of service of members after their appointment. The appellant was eligible and competent under the Act 1993 and had worked for about two years, including after the commencement of the Amendment Act 2006. Therefore, the Notification was deemed patently illegal. 4. Non-joinder of Necessary Parties: The respondents argued that the writ petition should be dismissed due to non-joinder of necessary parties, as the appellant did not implead the newly appointed members. The Court noted that no order can be passed behind the back of a person adversely affecting them, and such an order is liable to be ignored. However, since the appellant sought only a declaration that he had been unlawfully discontinued, and not to dislodge the newly appointed members, the Court provided the declaration without further relief. 5. Relief and Costs Awarded: The Court declared the Notification dated 28.5.2008 illegal but did not grant any relief that would affect the newly appointed members. The appellant was awarded costs amounting to Rs. 1 lakh, to be paid by the respondents within two months. Conclusion: The appeal was allowed to the extent that the Notification dated 28.5.2008 was declared illegal. The appellant was awarded costs, but no further relief was granted due to the non-joinder of necessary parties and the appellant's own submissions before the High Court.
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