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TMI Blog1995 (9) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... ion they have also brought in challenge the provisions of the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 (hereinafter referred to as the impugned Act ) which replaced the State Ordinance. At the stage of arguments learned counsel for the petitioners concentrated his attack on the provisions of Sub-sections (2), (3), (4), (5), (6), and (8) of Section 4 as well as Section 11 Sub-section (2) of the Act in so far as they conflicted with the order of the High Court, which had become final between the parties. It is not necessary to refer hereinafter to the provisions of the erstwhile Ordinance which has been replaced by the Act, the provisions of which are brought on the anvil of scrutiny in this petition. Background Facts In order to highlight the grievance of the petitioners against the impugned provisions of the Act it is necessary to note at the outset the facts leading to this petition. Petitioners Nos. 1 to 5 were civil servants of the erstwhile State of Hyderabad and Bombay. Their services stood allotted to the new State of Mysore under Section 115 of the States Reorganisation Act, 1956 (hereinafter referred to as the Reorganisatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the previous approval of the Central Government. On account of aforesaid integration of services of employees of States which got reorganised as aforesaid, till the inter-se seniority of the concerned allotted employees of such States was finally determined by the Central Government as required by Sub-section (5) of Section 115 of Reorganisation Act, the reorganised States like the State of Mysore were permitted to act on the basis of provisional seniority list of such employees and to effect promotions on that basis so that the administration of the reorganised States might not suffer. But that was subject to the rider that the said provisional list was subject to alterations when final list was prepared and once that happened the concerned State Government had to give effect to the final list. The said principle was laid down by this Court in the case of G.S. Ramaswamy etc. etc. v. The Inspector General of Police, Mysore State, Bangalore AIR 1966 SC 175 at page 180 as under : The next point that has been urged is that in any case till final integration of service was made, the State Government was not entitled to take into account the provisional list of subinspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the matter and fresh notifications were issued in May 1969. These notifications were on the same line as the earlier notifications. A fresh batch of writ petitions was filed before the High Court of Mysore which dismissed them by order dated 21.9.1971. Special Leave Petitions against this decision were also dismissed by this Court on 22.12.1972. Thus final adjudication was made regarding the claim of petitioners and others similarly situated for equation and seniority. In the background of the aforesaid settled legal position the petitioners claimed that though they were senior in the final seniority lists to many others, their juniors had got promoted in the meantime on the basis of higher ranking in the provisional seniority list which was earlier operative till it got superseded by the final seniority list as aforesaid. As their claim for being granted deemed dates of promotions with all consequential benefits was not accepted by the State of Mysore, the petitioners filed writ petitions before the High Court of Karnataka being Writ Petitions Nos. 2598 of 1970 and others. All these five writ petitions filed by the petitioners came to be allowed by a Division Bench of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rights guaranteed under the Constitution. Rival Contentions Learned counsel for the petitioners in support of his submission has relied upon a number of decisions of this Court with a view to submitting that the impugned provisions clearly seek to nullify final binding dicisions of the High Court against the State and in favour of the petitioners. It is an admitted position that common decision of the Division Bench of the High Court, has not been challenged higher up by the respondent-State. Learned senior counsel for the respondent Shri Madhava Reddy on the other hand fairly submitted that he could not support provisions which attempted to bypass the High Court s directions. His principal submission, however, was that consequential financial benefits directed by the High Court did not cover monetary benefits flowing from deemed promotions. He also in passing submitted that the foundation of the High Court judgment was displaced by the impugned Act but ultimately did not pursue the point any further. Hence we need not dilate on that additional aspect any further. Conclusion and Reasons for the same Having given our anxious consideration to rival contentions we have reached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 589) a Division Bench of this Court speaking through Venkatachala, J., had to consider the validity of Arbitration (Orissa Second Amendment) Act, 1991 which sought to nullify the awards made by the Special Arbitration Tribunals constituted under the 1984 Amendment Act, in exercise of the power conferred upon them by the Act itself. Striking down the provisions as ultra vires and illegal Venkatachala, J., made the following observations in paragraph 28 of the Report : Thus, the impugned 1991 Amendment Act seeks to nullify the awards made by the Special Arbitration Tribunals constituted under the 1984 Amendment Act, in exercise of the power conferred upon them by that Act itself. When, the awards made under the 1984 Amendment Act by the Special Arbitration Tribunals in exercise of the State judicial power conferred upon them which cannot be regarded as those merged in Rules of Court or judgments and decrees of Courts, are sought to be nullified by 1991 Amendment Act, it admits of no doubt that legislative power of the State Legislature is used by enacting impugned 1991 Amendment Act to nullify or abrogate the awards of the Special Arbitration Tribunals by arrogating to itself, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial benefits to them on the basis of deemed promotion given to them by the State in compliance with the decision of the Division Bench aforesaid. Consequently we will examine the challenge only from this limited angle. But before we do so it would be appropriate to refer to the statutory settings in which the impugned provisions saw the light of the day. The impugned Karnataka Act 11 of 1974 is headed by very instructive Preamble. It will be profitable to glance at the provisions of the Preamble to the impugned Act : An Act to provide for the prospective promotions of civil servants, and to regulate the pay, seniority, pension and other conditions of service of civil servants in the State of Karnataka including those that are allotted or deemed to be allotted to serve in connection with the affairs of the State of Karnataka under or in pursuance of section 115 of the States Reorganisation Act, 1956: Whereas on the basis of the ranking of civil servants in the several inter- State seniority lists prepared in pursuance of sub-section (5) of section 115 of the States Reorganisation Act, 1956 (Central Act 37 of 1956), courts have directed the making of retrospective prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) defines an allottee to mean, a Government servant allotted or deemed to have been allotted to serve in connection with the affairs of the State of Karnataka under or in pursuance of Section 115 of the States Reorganisation Act, 1956 (Central Act 37 of 1956) . It is necessary to note that State of Mysore subsequently got re-designated as State of Karnataka. As per clause (c) of Section 2 final seniority list means, an inter-State seniority list of allottees prepared in accordance with the decisions of Central Government under the provisions of sub-section (5) of Section 115 of the States Reorganisation Act, 1956 (Central Act 37 of 1956) . Clause (d) of Section 2 defines inter-State seniority list to mean, an inter-State seniority list prepared from time to time, on the basis of the seniority in which the eligibility of an allottee to promotion to higher post or posts is considered. As the petitioners are allottees within the meaning of the said term as defined by Section 2(a) we may straightaway turn to Section 4 of the Act which deals with such allottees. As some parts of sub-sections of Section 4 are brought in challenge in these proceedings it will be profitable to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost or office as if he was holding the said post or office from the date on which he is found eligible for promotion and drawn the pay and allowances accordingly, but he shall not be entitled to payment of any arrears for the period prior to the date of the actual promotion. [Where, on such review he is found eligible for promotion to a higher class or grade of service from a date subsequent to the date of his actual promotion to such class or grade of service, his pay on the date of eligibility shall be refixed as if he had been promoted on such date but he shall not be liable to refund the excess pay and allowances drawn by him up to the date of issue of the order fixing the date of eligibility]. His rank in the seniority list of persons in the class or grade of service to which he is promoted shall be fixed as if he had been promoted to that class or grade of service on the date on which he is found eligible for promotion. (4) Where an order is made in respect of any allottee under sub-section (2) or, as the case may be, under subsection (3), and the ranking in the seniority list of persons in the promoted class or grade of service, as fixed by such order, stands revised, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grade was promoted to the said class or grade of service, but he shall not be entitled to payment of any arrears for the period prior to the date of his actual promotion. His rank in the seniority list of the persons in the said class or grade shall be fixed as if he had been promoted on the date immediately preceding the date on which his immediate junior in the lower class or grade was promoted to the selection class or grade of service. (9) An order under sub-section (2) in respect of an allottee who had been reduced to a lower stage in a time scale and whose increment had been withheld shall be subject to such modification as the State Government may, by order direct. (10) No promotions of allottees made on the basis of any provisional inter-State seniority list, shall be reviewed except after the publication of the final seniority list and in the manner provided in this section. Explanation :- For purposes of this subsection provisional inter-State list includes every inter-State seniority list used as the basis for carrying on the day-to-day administration whether prepared by the State Government or declared by court as operative until the publication of the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te were sought to be done away with by enacting the impugned provisions of subsection (2) of Section 11. Such an attempt cannot be said to be a permissible legislative exercise. Section 11(2), therefore, must be held to be an attempt on the part of the State Legislature to legislatively over-rule binding decisions of competent courts against the State. It is no doubt true that if any decision was rendered against the State of Karnataka which was pending in appeal and had not become final it could rely upon the relevant provisions of the Act which were given retrospective effect by sub-section (2) of Section 1 of the Act for whatever such reliance was worth. But when such a decision had become final as in the present case when the High Court clearly directed respondent-State to give to the concerned petitioners deemed dates of promotions if they were otherwise found fit and in that eventuality to give all benefits consequential thereon including financial benefits, the State could not invoke its legislative power to displace such a judgment. Once this decision had become final and the State of Karnataka had not thought it fit to challenge it before this Court presumably because in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore this Court. That was not done. Instead it resorted to its legislative power for undoing the said directions of the Division Bench by arming itself with the power to review that judgment by resort to its legislative function. That was clearly not permissible as it was an act of encroachment on the judicial pronouncement of the High Court which had remained binding on the respondent-State. The ratio of the decisions of this Court as discussed earlier clearly get attracted on the facts of the present case and on the same grounds on which this Court invalidated the relevant provisions of Arbitration (Orissa Second Amendment) Act, 1991 in G.C. Kanungo (supra). Section 11 sub-section (2) of the impugned Act also has to be declared ultra vires and invalid. We, therefore, strike down Section 11 sub-section (2) as unconstitutional, illegal and void. So far as the underlined impugned portions of Section 4 sub-sections (2), (3) and (8) are concerned, they clearly conflict with the binding direction issued by the Division Bench of the High Court against the respondent-State and in favour of the petitioners. Once respondent-State had suffered the mandamus to give consequential financial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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