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TMI Blog2011 (4) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... tantive 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. - Civil Appeal No. 3299 OF 2011 (Arising out of SLP (C) NO. 16427 OF 2009) - - - Dated:- 18-4-2011 - Sathasivam P. And Chauhan B.S (Dr), JJ. JUDGMENT Dr. B. S. Chauhan, 1. Leave granted. 2. This appeal is focused animadverting upon the judgment and order dated 21.4.2009 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 27315 of 2008, by which the High Court dismissed the writ petition filed by the appellant, challenging the Notification dated 28.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s holding the tenure post for a period of five years, he was entitled to continue till 30.6.2011; the Amendment Act 2006 could not be applied retrospectively and it could not curtail the tenure of the persons who had been appointed and continuing as a Chairperson/Member of the Commission prior to the commencement of the amended provisions in force. Appointments subsequent to 22.11.2006, could be made as per the provisions of the Amendment Act 2006. Even otherwise, the appellant fulfilled the eligibility of having seven years experience as a District Judge required under the Amendment Act 2006, in view of the fact that the U.P. Higher Judicial Service Rules, 1975 (hereinafter referred to as `the Rules 1975 ), clearly provided that there would be a single cadre comprising the posts of District and Sessions Judges and Additional District and Sessions Judges. More so, Article 236(a) of the Constitution of India clearly stipulates that District Judge includes the Additional District Judge and Assistant District Judge. Thus, the appellant was fully eligible/qualified to be appointed afresh as a member of the Commission even as per the Amendment Act 2006. The appellant did not incur any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UNDER ACT NO. 1 OF 1994 (AS IT STOOD ON THE DATE OF APPOINTMENT OF THE APPELLANT) SECTION 21: (2) The State Commission shall consist of (a) . (b) one member who is, or has been, a Judge of a High Court. (c) one member who is, or has been, a district Judge in that State. SECTION 23: 23. Removal of a Member of the State Commission (1) Subject to the provisions of Subsection (2), the Chairperson or, any other member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be ought on any such ground to be removed. SECTION 26: 26. Terms and conditions of service of Members of the State Commission The salaries and allowances payable to, and other terms and conditions of service of, the Members shall be such as may be prescribed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inafter referred to as `the Act 1897 ), provides that District Judge means: (17) District Judge shall mean the Judge of a principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. Section 6: Effect of repeal- Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) .. (e) .. (iii) Rule 4 of the Rules, 1975 reads: Strength of the Service: (1) The service shall consist of a single cadre comprising the posts of (a) District and Sessions Judges, and (b) Additional District and Sessions Judges. (Emphasis added) 9. Against the aforesaid backdrops and in view of the aforesaid statutory provisions, it has been canvassed on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial posts inferior to the post of District Judge. The definition in Article 236 covers the higher section of the State Judicial Service both in the civil and criminal sides. (See: All India Judges Association v. Union of India Ors., AIR 1992 SC 165). 12. In such a fact-situation, we do not see any cogent reason to take a view contrary to the same for the reason that in case the Legislature in its wisdom has prescribed a minimum experience of seven years as District Judge knowing it fully well the existing statutory and constitutional provisions, it does not require to be interpreted ignoring the legislative intent. We cannot proceed with an assumption that Legislature had committed any mistake enacting the said provision. Clear statutory provision in such a case is required to be literally construed by considering the legislative policy. Thus, no fault can be found with the impugned judgment and order of the High Court on this count. 13. The question does arise as to whether the State could issue the Notification making a declaration that the appellant ceased to be the member of the Commission and whether the said Notification could take away the accrued rights of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not apply. Tenure means a term during which the office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and when it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person does not superannuate. He only comes out of the office on completion of his tenure. (Emphasis added) 19. Justifiable grounds, as referred to hereinabove by this Court in P. Venugopal (supra), means the grounds of incurring any disqualification while holding the post i.e. the grounds incorporated in Section 23 of the Act 1993. If we give the dictionary meanings to the said expression, it means: done on adequate reasons sufficiently supported by credible evidence, when weighed by unprejudiced mind, guided by common sense and by correct rules of law. The showing in court that one had sufficient reason for doing that which he is called to answer; the ground for such a plea. Lexically, the sense is clear. An act is justified by law if it is warranted, validated and made blameless by law . (Vide: Raj Kapoor v. Laxman, AIR 1980 SC 605). 20. The word 'vest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with retrospective effect also, but the intention of the Legislature to apply the amended provisions with retrospective effect must be evident from the Amendment Act itself expressly or by necessary implication. The aforesaid power of the Legislature is qualified further that such a unilateral alteration of service conditions should be in conformity with legal and constitutional provisions. (Vide: Roshan Lal Tandon v. Union of India Ors., AIR 1967 SC 1889; State of Mysore v. Krishna Murthy Ors., AIR 1973 SC 1146; Raj Kumar v. Union of India Ors., AIR 1975 SC 1116; Ex-Capt. K.C. Arora Anr. v. State of Haryana Ors., (1984) 3 SCC 281; and State of Gujarat Anr. v. Raman Lal Keshav Lal Soni Ors., AIR 1984 SC 161). 25. In Union of India Ors. V. Tushar Ranjan Mohanty Ors., (1994) 5 SCC 450, this Court declared the amendment with retrospective operation as ultra vires as it takes away the vested rights of the petitioners therein and thus, was unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution. While deciding the said case, this Court placed very heavy reliance on the judgment in P.D. Aggarwal Ors. v. State of U.P. Ors., AIR 1987 SC 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, privilege or liability acquired, accrued or incurred under the enactment repealed. 29. A Constitution Bench of this Court in Chairman, Railway Board Ors. v. C.R.Rangadhamaiah Ors., AIR 1997 SC 3828, dealt with the case where the pension admissible under the Rules in force at the time of retirement was reduced with retrospective effect. This Court held such an action to be unreasonable and arbitrary being violative of Articles 14 and 16 of the Constitution of India. The Court observed as under: It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection process, he is bound to implead at least some of the successful candidates in representative capacity. In case the services of a person is terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the plaintiff/petitioner succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by plaintiff/petitioner. (Vide: Prabodh Verma Ors. etc. etc. v. State of U.P. Ors. etc., AIR 1985 SC 167; Ishwar Singh Ors. v. Kuldip Singh Ors., 1995 (supp) 1 SCC 179; Tridip Kumar Dingal Ors. v. State of West Bengal Ors., (2009) 1 SCC 768; State of Assam v Union of India Ors., (2010) 10 SCC 408; and Public Service Commission, Uttaranchal v. Mamta Bisht Ors., AIR 2010 SC 2613). More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post. 33. The appellant did not implead any person who had been appointed in his place as a Member of the Commission. More so, he made it clear before the High Court that his cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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