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TMI Blog1994 (7) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Government of India from time to time. Mohanty, being senior to respondents 2 to 9 in Grade IV, challenged their promotions before the Central Administrative Tribunal, Calcutta Bench, (the Tribunal) on the ground that under the reservation, in respect of appointments to the service by promotion, was not permitted under the Rules. The Tribunal accepted the contention of Mohanty and came to the conclusion that promotion of respondents 2 to 9 in supersession of the claim of Mohanty was against the rules. The Tribunal, however, did not disturb the promotions already given to the respondents and directed that Mohanty be deemed to have been promoted to Grade III from the same date when respondents were promoted and he would be placed above the respondents in the seniority list of Grate III. This appeal, by the Union of India, is against the Judgment of the Tribunal. 2. We have no hesitation in holding that the Tribunal correctly interpreted the rules as they existed on November 28, 1988 when the Tribunal delivered its judgment. These rules were, however, amended with effect from November 27, 1972 by the Notification dated February 20, 1939 and the reservation for Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fitness. The amended Rule 13 was made operative with effect from November 27, 1972 with a view to extend the benefit of reservation in promotional posts in the service in terms of the executive instructions of the Government dated November 27, 1972. 6. Seniority list of Grade IV of the service was published on May, 8, 1986. In the said list, Mohanty was shown senior to respondents 2 to 9. On November 24, 1987, respondents 2 to 9 were promoted to Grade III in the service. Mohanty submitted a representation requesting the Cadre Controlling Authority to consider his case for promotion under the proviso to Rule 8(1)(b)(i) of the rules as his juniors had been promoted without declaring him unfit. The representation was rejected by the order dated February 11, 1988 on the ground that respondents 2 to 9 had been promoted on the basis of reservation policy. Mohanty challenged the promotion of respondents 2 to 9 before the Tribunal. As mentioned above, the Tribunal allowed the application of Mohanty and, as such, this appeal. 7. It is stated by Mohanty in his counter-affidavit that the reservation was for the first time introduced on May 22, 1986 and thereafter on Sept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general category shall not be withdrawn, 6. Proviso to Rule 8(1)(b)(i) states that if any junior officer in Grade-IV is eligible and is considered for promotion, all officers senior to him in that grade shall also be considered for promotion. Even if a reserve category officer who is junior to the general category officer is considered for promotion all officers senior to him in the general category shall have to be considered for promotion along with the junior Schedule Caste candidate. 9. We take up the first and the second contentions together for consideration. It is obvious from the plain language of Rule 8(1)(b)(i) that all Grade-IV officers who have completed four years of service on regular basis are entitled to be considered for promotion to grade-III on the basis of their seniority provided they are not found unfit by the Controlling Authority, The rule gives a statutory right to Grade-IV officers to be considered for promotion in the order of their seniority. The said right is further strengthened by the proviso to Rule 8(1)(b)(i), The proviso makes it obligatory that when a junior officer in Grade-IV is eligible and is considered for promotion all off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. The employees filed writ petitions under Article 32 of the Constitution of India before this Court challenging the constitutional validity of the Amending Act. The State appeal and the writ petitions were heard together by a Constitution Bench of this Court. This Court held that the Gujarat Panchayats (Third Amendment) Act, 1978 was arbitrary, unreasonable and unconstitutional on the following reasoning: The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today's rights not yesterday's. A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in B.S. Yadav v. State of Haryana, (1981)ILLJ280SC Chandrachud, C.J., speaking for the Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat v. Raman Lal Keshav Lal Soni (supra) struck down the amendment on the following reasoning: The question, however, has been pointedly considered recently by a Constitution Bench of this Court in State of Gujarat v. Raman Lal Keshav Lal Soni.... In view of this latest pronouncement by the Constitution Bench of this Court, the law appears to be well-settled and the Haryana Government cannot take away the accrued rights of the petitioners and the appellants by making amendment of the rules with retrospective effect. For the foregoing discussion, the writ petitions as well as the appeals are allowed and the orders of the High Court dated October 10, 1980 are quashed and the impugned Rule 4 (ii) of the Punjab Government National Emergency (Concessions) Rules 1965 as amended by the Haryana Government Gazette Notification No. GSR 77/Const./Art. 309/Amend/(l)/76 dated 22nd March, 1976 and the Notification No. GSR 182/Const./Art. 309/Amended/(2)/76 dated 9th August, 1976 amending the definition of the expression 'Military Service' in Rule 2 are declared to be ultra vires the Constitution in so far as they affect prejudicially persons who had acquired rights as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect of retrospective legislation on the vested rights of the affected persons in P.D. Aggarwal and Ors. v. State of U.P. and Ors. [1987]3SCR427 . Under the U.P. Service of Engineers (Buildings Roads Branch) Class II Rules, 1936, the Assistant Engineers substantively appointed against temporary vacancies became members of the service and were entitled to seniority on the basis of continuous length of service. The rules were amended in the years 1969 and 1971 wherein it was provided that the Assistant Engineers would only become members when they are selected and appointed against the quota meant for them and their seniority would be determined only from the date of order of appointment in substantive vacancies. These amendments were made with retrospective effect thereby taking away the vested rights of the Assistant Engineers appointed against temporary posts. The High Court held the retrospective amendment of the rules to be arbitrary and unconstitutional. This Court upheld the judgment of the High Court on the following reasoning: It has been urged that Government has the power to amend rules retrospectively and such rules are quite valid. Several decisions hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation. 15. Respectfully following the law laid-down by this Court in the judgments referred to and quoted above, we are of the view that the retrospective operation of the amended Rule 13 cannot be sustained. We are satisfied that the retrospective amendment of Rule 13 of the rules takes away the vested rights of Mohanty and other general category candidates senior to respondents 2 to 9. We, therefore, declare amended Rule 13 to the extent it has been made operative retrospectively to be unreasonable, arbitrary and, as such, violative of Articles 14 and 16 of the Constitution of India. We strike down the retrospective operation of the rule, In the view we have taken on the point it is not necessary to deal with the other contentions raised by Mohanty. 16. The appeal is dismissed with cost. We quantify the cost as ₹ 10,000 to be paid by the Union of India to Mohanty - respondent 1. Order 17. We have pronounced judgment in Civil Appeal No. 3844 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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