Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty S/O Shri Rabi ... vs Union Of India (Uoi) Through The ... on 5 September, 2007
ORDER Shanker Raju, Member (J)
1. By virtue of this OA, applicant, a member of Indian Statistical Service (for short ISS) in non-functional selection grade (NFSG), has sought the following reliefs:
8.1 to allow the present application;
8.2 to quash the retrospective effect (Rule 1(2) of the Notification No. G.S.R. 411(e); dated 1.07.2006 (Annexure A-1) as illegal, arbitrary, whimsical, fanciful, and for taking away the vested rights of the applicant.
8.3 to grant all consequential benefits /reliefs following out of such quashing of the retrospective effect (Rule 1(2) of the Notification No. G.S.R. 411(E), dated 11.07.2006 (Annexure A-1):
8.4 to quash any illegal action earlier taken that is sought to be legalized by the operation of Rule 1(2) of the Notification No. G.S.R. 411(E), dated 11.07.2006 (Annexure A-1) as being void-ab-initio;
8.5 to issue any such and further order/directions this Hon_ble Tribunal deems fit and proper in the facts and circumstances of the case; and 8.6 to allow exemplary costs of the application.
2. For the sake of convenience, brief factual matrix of the case is highlighted.
3. ISS was constituted on 1.11.1961 by initially encadring various posts carrying statistical functions in various Ministries of the Govt. Till October 1984, DOPT was the cadre controlling authority, which now vests in Ministry of Statistical & Programme Implementation. ISS consists of five grades, which in the hierarchy is Grade I, Grade II, Grade III and Grade IV and now Higher Administrative Grade (HAG), Senior Administrative Grade (SAG), Junior Administrative Grade (JAG), Senior Time Scale (STS) and Junior Time Scale (JTS). In addition thereof, a NFSG having a strength equivalent to 30% of senior duty post at the level of STS also exists. The statutory rules for filling up the vacancies in SAG were amended by GSR No. 584 (E) dated 14.9.2005.
4. Applicant, who was promoted on 31.8.1998 as JAG on ad hoc basis, was regularized on 10.5.1999 and was accorded NFSG w.e.f. 6.6.2006. As per the aforesaid statutory rule, posts in SAG are to be filled up amongst the feeder category of JAG officers with eight years_ regular service in the grade, inclusive of NFSG service. On 17.2.1998, Government has issued orders of first cadre review in the ISS. Accordingly, on 13.1.2003, Indian Statistical Service Rules, 1961 (for short _ISS Rules 1961_) were amended and it was notified vide GSR 25 (E). This amendment has prospective effect only.
5. In the year 2003, another proposal for cadre review was initiated and as a result thereof, ISS Rules 1961 were amended on 14.9.2005 with prospective effect.
6. In 2005, Union Cabinet approved the cadre review proposal. However, on 5.1.2006 in implementation of the Cabinet, approval and Executive order was issued without any amendment to the Schedule-I of ISS Rules 1961, which pertains to list of the duty post sanctioned in the Service. Applicant, who preferred a representation against holding of DPC to fill up some of the posts created vide order dated 5.1.2006 on the ground that the Executive order issued by the respondents is the basis of the DPC. Applicant, who was eligible as per Rule 8 (1)(f) of ISS Rules 1961 has been meted out a differential treatment. However, a DPC met on 5.5.2006 was also represented by the applicant and as his representation was not decided by the respondents, it led to filing of OA-1098/2006, which was disposed of on 19.5.2006 directing the respondents to pass speaking orders. Another representation preferred by the applicant on 23.5.2006 was against the relaxation to be granted under the ISS Rules 1961. On 24.5.2006, DOPT granted relaxation to Rule 8 (1)(f) of ISS Rules 1961. As a result thereof, applicant was declared eligible for promotion for SAG. A memorandum issued on 22.6.2006 rejected the representation of the applicant, which was further represented by the applicant.
7. Vide OA-1389/2006, applicant had challenged the rejection order dated 22.6.2006, which is sub judice before the Tribunal. However, a notification issued in Schedule of ISS Rules 1961 was promulgated on 11.7.2006 with retrospective effect from 5.1.2006 and as a result thereof, certain officers had been promoted, which gives rise to the present OA.
8. Applicant (Shri T.R. Mohanty) has submitted written arguments. During the interregnum of pendency of this OA, one Shri E. Nagachandran, Senior Research Officer was impleaded as private respondent No. 3 apart from respondent No. 2 Shri K.S.R.K.V. Prasada Rao, who had been promoted after the amendment to the Schedule was carried out by the Government in SAG grade of ISS Grade.
9. Applicant basically has assailed the retrospective amendment in Schedule _I to ISS Rules 1961 with a grievance that his vested rights have been infringed. A reference has been made to his earlier decision of the Apex Court in Union of India v. Tushar Ranjan Mohanty (1994) 5 SCC 450 to contend that a retrospective amendment as a subordinate legislation would not be apt in law if it violates or takes away the vested right, which is neither reasonable nor fair.
10. Applicant, who appeared in person, submitted that the cut-off date of retrospectivity of the amendment is 5.1.2006, which is unreasonable, as it has no reasonable nexus with an object sought to be achieved. According to him, it lacks any logic or rationality.
11. While referring to ISS Rules 1961, applicant contended that the controlling authority, as defined under Rule 2 (c) of ISS Rules, is defined further in Rule 6, which reads as follows:
6. Controlling Authority - The Ministry of Planning Department of Statistics) advised by a Board known as the Indian Statistical Service Board shall be the Controlling Authority. The Board will be presided over by the Cabinet Secretary and in addition consist of six members of whom at least four shall be Secretaries of the participating Ministries and Director General as the Head of the Central Statistical Organization, Department of Statistics. The Board may be assisted in technical matters, if so required, by a Committee of members consisting of officials and non-officials, without prejudice to the recognized functions and responsibilities of the Commission.
12. While referring to Rule 5 (2) of ISS Rules 1961, applicant contends that the authorized permanent strength of the ISS is to be fixed by the controlling authority from time to time with the concurrence of Ministry of Finance. Accordingly, it is stated that on an information received under RTI Act 2005 that there can be three possible dates, which could be assigned to the impugned notification, which is the date of prospectivity of promulgation, i.e., 11.7.2006, 29.12.2003, the date on which the cadre review proposal based on which the notification had been issued or 8.9.2005, the date on which ISS Board approved the cadre review proposal.
13. As regards 5.1.2006, it is stated that under the proviso to Article 309 of the Constitution of India, there is no impediment to amend statutory rules retrospectively but it has to be reasonable and would not wrest away the vested right of any person. Apart from the decision of the Apex Court, referred to above, the decision of Apex Court in P.D. Aggarwal v. State of Uttar Pradesh (1987) 3 SCC 622 was also relied upon among other cases cited by the applicant.
14. Though the stand of Shri Mohanty that along with the amendment, an explanatory memorandum appended, which reads as under:
Explanatory Memorandum Consequent upon the issuance of the Executive Order No. 12011/1/2003-ISS (Vol.V) which was issued based on the Union Cabinet approval to the restructuring of the Indian Statistical Service Cadre, the amendment of the Indian Statistical Service Rules, 1961 proposing to amend Schedule 1 is amended accordingly with effect from 5th January 2006. It is hereby certified that no person is being adversely affected by giving retrospective effect to the said rules.:_ yet it is contended that it does not clarify that as to the object of giving a retrospective date as to the effect of the impugned notification and moreover, it is stated that the certification that no person is adversely affected is not correct, as one Shri S.K. Gupta, the seniormost officer concerned as well as Smt. Gopa Sen have not been found fit for promotion. These two officers in the light of creation of 60 posts should have been considered along with others in the recruitment year 2006-07. Accordingly, these 60 newly created posts are deemed to have been created w.e.f. 5.1.2006, which is during the recruitment year 2005-06, therefore, these two persons, mentioned above, who were not found fit in the recruitment year 2005-06, were superceded by 26 persons in the promotion order. This has been advanced to comment upon the falsity of the explanatory memorandum.
15. Applicant in person fairly admitted that by restrospectivity given to the notification his vested rights are not at all affected but the cut off date of 05.01.2006 has affected the fundamental rights of the applicant. Reliance has been placed on decision of the Apex Court in B.S. Yadav v. State of Haryana 1980 SCC (Supp.) 524 to contend that the date from which the rules are made to operate must be established to bear either from the face of the rules or by extrinsic reasonable nexus with the provisions contained in the rules. A decision of the Apex Court in S. Ramanathan v. Union of India CA No. 2560/1999 decided on 07.12.2000 was also relied upon to contend that impugned notification may be given effect from the date the cadre review was given effect to, which is 29.12.2003.
16. As regards the date of 8.9.2005 to be the cut off date in retrospective application of the amendment it is contended that the posts included in the ISS shall be those specified in Schedule I as per Rule 3(1) of the ISS Rules. Rule 5(2) has been relied upon to contend that the authorized permanent strength of service when to be fixed from time to time was not in the original rules but inserted vide an amendment 24.10.1996. It is stated that Rule 6 of the ISS Rules provides constitution of a service Board where Secretary, Department of Expenditure, Ministry of Finance, is the concerned person to approve the creation of posts from financial angle is not a Member of ISS Board but after the final shape of cadre review was taken the approval of Secretary, Ministry of Statistics was obtained on 31.03.2003 and was put for approval of ISS Board and Secretary, Ministry of Finance, who was co-opted in ISS Board. Accordingly, the approval of the cadre review proposal with consent of the Ministry of Finance as on 08.09.2005 should have been the date of creation of posts. Shri Mohanty states that in the higher level of ISS cadre chaotic situation has arisen whereby officers have been illegally bifurcated into two groups whereas the first set was given regular promotion, for second set relaxation of eligibility criteria was sought. Applicant states that the date 5.1.2006 has been of retrospective operation of the amendment in Schedule were to nullify the claims of the applicant in OA 1389/2006 and to protect the promotion of others. In this backdrop, it is stated that only one person i.e. Shri Ahamed Ayub B., who was Deputy Secretary managing ISS cadre using his official position issued order dated 12.1.2006 become a non-functional selection grade officer of the ISS. Accordingly, it is stated that undue haste has been made to amend the Schedule, which cannot be countenanced in law.
17. Shri Mohanty states that the cadre review proposal was approved by the Cabinet on 29.12.2005, which is not a methodology to be adopted under the statutory rules whereas the posts have been created vide notification issued on 13.1.2003, 14.9.2005 and 11.7.2006 by the orders of the President, which is the competent authority. Accordingly, Cabinet is not the authority to approve.
18. As regards prejudice caused to the applicant, it is stated that once the process has been undertaken to nullify the effect of OA 1398/2006 reliance is placed on Indira Nehru Gandhi v. Raj Narain 1975 SCC (Supp.) SCC 1 to contend that the aforesaid amounted to use of legislative power to assume the role of a judicial body.
19. Applicant states that the impugned notification is an attempt by the respondents to validate illegal DPC held on 05.05.2006. As the applicant has right to be considered for promotion as per Article 16 (1) of the Constitution of India, as held in Badrinath v. Government of T.N. 2000 (8) SCC 395 whereas the right of consideration is available in accordance with zone of consideration when the applicant was well within total number of vacancies, the impugned notification classifying the set of officers in the zone of consideration into two renders the applicant is illegible and takes away his vested right of fair consideration.
20. As regards non-joinder of parties, it is stated that as respondent No. 2 in his individual as well as personal capacity has been impleaded, moreover, when the question relates to validity of the criteria adopted and a reliance has been placed on statutory rules as per the decision of the Apex Court in A. Janardhana v. Union of India 1983 SCR (2) 936 to contend that parties need not be impleaded and moreover, while placing reliance on a decision by the Apex Court in Prabodh Verma v. State of U.P. AIR 1985 SC 167, it is stated that if some of the affected persons are made parties, it is a valid compliance.
21. Insofar as respondents are concerned, Shri K.R. Sachdeva, learned Counsel for the respondents, while referring to the allocation of Business Rules states that when the process of finalization of the amendment to the Schedule 1 was completed on 29.12.2005, the date of implementation on restrospectivity would be a few days later, which is valid and intra vires, i.e., 5.1.2006. Learned Counsel states that no legal foundation has been laid down by the applicant when the decision is as a public policy and as the amendments have been carried out also in past retrospectively the necessary parties have not been impleaded and impleadment of respondent No. 2 is only in his individual capacity. Those, who had been promoted after the amendment of the Schedule have not been made parties and their rights are likely to be affected, non-impleadment is in violation of principles of natural justice. Shri Sachdeva, in his reply, has elaborately dealt with scheme of ISS and stated that there is no cause of action in favour of the applicant.
22. Shri Sachdeva further states that as per the impugned notification, the explanatory memorandum clearly spelt out that no person is being adversely affected and as the applicant has miserably failed to establish that his vested rights have been affected in any manner, OA is misconceived.
23. Shri Sachdeva states that the amendment of Schedule I has merely incorporated Ministry/Department wise position of posts, which was being amended separately as it involves time consuming process. Pending notification of revised Schedule I in the interest of service a proposal to fill supplementary vacancies for the year 2005-2006 at SAG level was processed. However, during scrutiny against 58 supplementary vacancies when only 30 officers were found eligible, it was appropriate to move the proposal to UPSC to fill up the available supplementary vacancies of 2005-06 and the vacancies including carry forward vacancy likely to be available for 2006-07, with a request to accord necessary relaxation to those, who are short of qualifying service. Accordingly, the proposal when moved to UPSC in March, 2006, DOP&T was asked to grant relaxation of DPC held on 05.05.2006 by the Commission considered eligible officers for promotion to SAG and on its recommendation, promotion order dated 26.07.2006 was made, which has now been challenged by the applicant in OA 1389/2006.
24. It is also stated that remaining supplementary vacancies on accord of relaxation was on a condition that promotion are to be given only on ad hoc basis, which has been challenged in OA 1758/2006 by the applicant.
25. Shri Sachdeva, learned Counsel states that revised Schedule 1 containing Ministry/Department-wise strength of ISS posts has been notified w.e.f. 5.01.2006 with retrospective effect, ensuring that no officer is adversely affected. Respondent No. 2, K.S.R.K.V. Prasada Rao, has appeared in person, is the person, who had been promoted in SAG vide order dated 27.06.2006. As a comment, it is offered that the respondent shall abide by the follow up action as per the direction of the Tribunal.
26. Respondent No. 3, Shri E. Nagachandran, has also appeared in person and reiterated in a manner the case made out by the applicant.
27. Rejoinder filed by the applicant to all these replies of the respondents reiterates the pleas taken by him.
28. We have carefully considered the rival contentions of the parties and perused the material on record.
29. Before we advert to the issue raised in the present OA, let us be clear about restrospectivity of an amendment carried under proviso to Article 309 of the Constitution of India. It is trite law that when the power to frame rules is available under proviso to Article 309 of the Constitution of India, a power to make retrospective amendment is a valid exercise of such power. Only safeguard to be adopted is that it is to ensure that vested right of a person shall not be adversely affected. Insofar as retrospective operation of rules is concerned, the Apex Court recently in Pitta Naveen Kumar and Ors. v. Raja Narasaiah Zangiti 2007 (1) SCC (L&S) 92 ruled as under:
29. We begin our discussions by taking into consideration what would be a vested right vis-`a-vis an accrued right.
30. In Kuldeep Singh v. Govt. of NCT of Delhi 2006 (6) SCALE 588, this Court observed:
What would be an acquired or accrued right in the present situation is the question.
In Director of Public Works and Anr. v. HO PO Sang and Ors. (1961) AC 901, the Privy Council considered the said question having regard to the repealing provisions of Landlord and Tenant Ordinance, 1947 as amended on 9th April, 1957. It was held that having regard to the repeal of Sections 3A to 3E, when applications remained pending, no accrued or vested right was derived stating:
In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of Sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor.
31. In Saurabh Chaudri (Dr.) v. Union of India (2004) 5 SCC 618, it is stated:
A statute is applied prospectively only when thereby a vested or accrued right is taken away and not otherwise. (See S.S. Bola v. B.D. Sardana) A judgment rendered by a superior court declaring the law may even affect the right of the parties retrospectively.
30. As held by the Apex Court in N.T. Bevin Katti v. Karnataka Public Service Commission 1990(3) SCC 157 that if the Recruitment Rules are amended retrospectively whether the rules have retrospective effect or not, depends upon the language of the rules and its construction to ascertain the legislative intent. It is either expressed by necessary implication or by express provision. Apex Court in State Bank_s Staff Union (Madras Circle) v. Union of India and Ors. 2005 (7) SCC 584 as to the restrospectivity, observed as under:
21. Every sovereign legislature possesses the right to make retrospective legislation. The power to make laws includes power to give it retrospective effect. Craies on Statute Law (7th Edn.) at p. 387 defines retrospective statutes in the following words:
A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.
22. Judicial Dictionary (13th Edn.) K.J. Aiyar, Butterworth, p. 857, states that the word "retrospective" when used with reference to an enactment may mean (i) affecting an existing contract; or (ii) reopening up of past, closed and completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a "retrospective or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transaction or considerations already past.
23. In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edition, 2005) the expressions "retroactive" and "retrospective" have been defined as follows at page 4124 Vol.4) Retroactive- Acting backward; affecting what is past. (Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. - Also termed retrospective. (Black, 7th Edn. 1999) 'Retroactivity' is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasi-retroactivity', occurs when a new rule of law is applied to an act or transaction in the process of completion.... The foundation of these concepts is the distinction between completed and pending transactions.... (T.C. Hartley, The Foundations of European Community Law 129 (1981).
Retrospective- Looking back; contemplating what is past.
Having operation from a past time.
'Retrospective' is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general however the Courts regards as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other past conduct. Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing. (Vol.44 Halsbury's Laws of England, Fourth Edition, page 570 para 921).
24. The question of retrospectively affecting the award is factually of academic interest. It was admitted before the High Court that all amount payable under the award for the prior period has been paid.
25. In Harvard Law Review, Vol. 73, p. 692 it was observed that it is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called 'small repairs'. Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislature's or administrator's action had the effect it was intended to and could have had, no such right would have arisen. Thus the interest in the retroactive curing of such a defect in the administration of government outweighs the individual's interest in benefiting from the defect.
26. The above passage was quoted with approval by the Constitution Bench of this Court in the case of The Asstt. Commr. of Urban Land Tax v. The Buckingham and Carnatic Co. Ltd. 1969 (2) SCC 55. In considering the question as to whether the legislative power to amend a provision with retrospective operation has been reasonably exercised or not, various factors have to be considered. It was observed in the case of Stott v. Stott Realty Co. 284 N.W. 635 - as noted in Words and Phrases, Permanent Edn., Vol.37-A, p. 2250 that:
The constitutional prohibition of the passage of 'retroactive laws' refers only to retroactive laws that injuriously affect some substantial or vested right, and does not refer to those remedies adopted by a legislative body for the purpose of providing a rule to secure for its citizens the enjoyment of some natural right, equitable and just in itself, but which they were not able to enforce on account of defects in the law or its omission to provide the relief necessary to secure such right.
27. Craies on Statute Law (7th Edn.) at p. 396 observes that:
If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right.
28. Thus public interest at large is one of the relevant considerations in determining the constitutional validity of a retrospective legislation.
29. The above position was elaborately noted in Virendra Singh Hooda and Ors. v. State of Haryana and Anr. 2004 (12) SCC 588.
30. Curative Statutes are by their very nature intended to operate upon and affect past transactions. Curative and validating statutes operate on conditions already existing and are therefore wholly retrospective and can have no retrospective operation.
31. Blackstone J in Nicol v. Verelst 1779 (26) E.R. 751 held that "declaratory do not prove that law was otherwise before, but rather the reverse".
32. There is no quarrel and in fact in our opinion rightly that legislature cannot by a mere declaration, without anything more, directly overrule, reverse or override a judicial decision. However, it may, at any time in exercise of the plenary powers conferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralizing effect the condition on which such decision is based (see: I.N. Saxena etc. v. State of Madhya Pradesh 1976 (4) SCC 750.
33. As noted in Indira Nehru Gandhi v. Raj Narain 1975 (suppl.) SCC 1 rendering ineffective of judgments or orders of competent Courts or Tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power. There is a distinction between encroachment on the judicial power and nullification of the effect of a judicial decision by changing the law retrospectively. As noted by this Court in M/s. Tirath Ram Rajindra Nath, Lucknow v. State of U.P. and Anr. 1973 (3) SCC 585 the former is outside the competence of the legislature but the latter is within its permissible limits.
34. It has to be noted that the legislature, as a body, cannot be accused of having passed a law for extraneous purpose. If no reasons are stated as appear from the provisions enacted by it, its reasons for passing a law are those stated in the Objects and Reasons. Even assuming that the Executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of "Transferred malice" is unknown in the field of legislation. (See K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr. AIR 1985 SC 551 and G.C. Kanungo v. State of Orissa AIR 1995 SC 1655.
35. Learned Counsel for the appellant submitted that vested rights cannot be taken away by the legislation by way of retrospective legislation. The plea is without substance. Whenever any amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are bound to be effective one way or the other. In every case the exercise by legislature by introducing a new provision or deleting an existing provision with retrospective effect per se does not amount to violation of Article 14 of the Constitution. The legislature can change, as observed by this Court in Cauvery Water Disputes Tribunal, Re (1993 Supp. (1) SCC 96 (II)), the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power by the State and to function as an appellate Court or Tribunal, which is against the concept of separation of powers._
31. If one has regard to the above, when restrospectivity of a statutory rule is challenged before the court in judicial review, it has to be ascertained before hand whether the vested right has been affected or not?
32. Right to promotion is not a fundamental right but right to consideration in accordance with the rules is a fundamental right guaranteed to a Government servant in his service conditions as held by the Apex Court in Dwarka Prasad v. Union of India 2004(1) ATJ SC 591.
33. Having regard to the above, the Apex Court in Virender Singh Hooda v. State of Haryana 2005 SC (L&S) 1044, insofar restrospectivity of a legislation is concerned, held as under:
33. The legislative power to make law with retrospective effect is well recognised. It is also well settled that though the Legislature has no power to sit over Court's judgment or usurp judicial power, but, it has, subject to the competence to make law, power to remove the basis which led to the Court's decision. The Legislature has power to en-act laws with retrospective effect but has no power to change a judgment of Court of law either retrospectively or prospectively. The Constitution clearly defines the limits of leg-islative power and judicial power. None can encroach upon the field covered by the other;
The laws made by the Legislature have to conform to the constitutional provisions. Submissions have also been made on be half of the petitioners that by enacting law with retrospective effect, the Legislature has no power to take away vested rights, The contention urged is that the rights created as a result of Issue of writ of mandamus cannot be taken away by enacting laws with retrospective effect. On the other hand, it was contended on behalf of the respondent-State that the power of the Legislature to enact law with retrospective effect includes the power to take away vested rights includ-ing those which may be created by issue of writs,
34. Every sovereign Legislature possesses the right to make retrospective legislation. The power to make laws includes power to give it retrospective effect. Craies on Statute Law (7th Edn.) at page 387 defines ret-rospective statutes in the following words. "A statute is deemed to be retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to trans-actions or considerations already past". Ju-dicial Dictionary ; [13th Edition) K.J. Aiyar, Butterworth, pg. 857, states that the word 'retrospective' when used with reference to an enactment may mean (i) affecting an ex-isting contract; or (ii) re-opening up of past, closed and completed transaction; or (ill) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Phrases; Permanent Edition; Vol. 37A pages 224/225, defines a 'retrospective' or 'retroactive law' as one which takes away or Impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or im-pairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.
35. In 73rd volume of Harvard Law Re-view, page 692 it was observed that "it is necessary that the Legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called 'small repairs'. Moreover, the individual who claims that a vested right has arisen from the defect is seeking a wind-fall since had the Legislature's of adminis-trators action had the effect it was intended to and could have had, no such right would have arisen. Thus, the interest in the retro-active curing of such a defect in adminis-tration of Government outweighs the indi-vidual's interest in benefiting from the de-fect." The above passage was quoted with approval by the Constitution Bench of this Court m the case of The Assistant Commissioner of Urban Land Tax and Ors. v. The Bucking-ham and Carnatic Co. Ltd. etc. (1969) 2 SCC 55. In considering the question as to whether the legislative power to amend a provision with retrospective operation has been reasonably exercised or not, various factors have to be considered. It was ob-served in the case of Stott v. Stott Realty Co. 284 NW 635, 640, 288 Mich 35, (as noted in Words and Phrases, Permanent Edition, Volume 37A, page 225) that 'The constitutional prohibition of the passage of 'retroactive laws' refers only to retroactive laws that injuriously affect some substan-tial or vested right, and does not refer to those remedies adopted by a legislative body for the purpose of providing a rule to secure for its citizen's the enjoyment of some natu-ral right, equitable and just in itself, but which they were not able to enforce on ac-count of defects in the law or its omission to provide the relief necessary to secure such right". Craies on Statue Law (7th Edn.) at page 396 observes that "if a statute is passed for the purpose of protecting the public against some evil or abuse, it may be al-lowed to operate retrospectively, although by such operation it will deprive some per-son or persons of a vested right." Thus pub-lic interest at large is one of the relevant con-siderations in determining the constitutional validity of a retrospective legislation.
36. In respect of recruitment to posts in Haryana Civil Service (Executive Branch) and other Allied Services, under the Rules, it was observed in Ashok Kumar sc 454 : Yadav and Ors. v. State of Haryana and Ors. (1985) 4 SCC 417 that where there is a com-posite test consisting of a written examina-tion followed by a viva voce test, the number of candidates to be called for-interview in order of the marks obtained in the written examination, should not exceed twice or at the highest thrice the number of vacancies to be filled. The judgment does not make reference to any circular. It does not appear from material on record that for recruitment to these posts for which combined competitive examination takes place, these circulars were ever applied. The circulars, it seems, were relied upon for the first time in Hooda's case.
34. What is discerned from the cumulative reading of the above cases is an explicit ratio decidendi that the legislative power to make law with retrospective effect is well recognized but simultaneously legislature has no right to take away vested rights. As the applicant has now contended that his vested right is not taken away by retrospective amendment i.e. he has still right to be considered on eligibility for promotion in SAG even on the restrospectivity of the amendment in Schedule I. The aforesaid retrospective amendment has been unsuccessfully challenged and is intra vires, which does not violate the provisions of Articles 14 and 16 of the Constitution of India. The only challenge is to an alleged attempt by the respondents to nullify OA 1389/20006 where the DPC has been challenged.
35. In view of decision in Virender Singh Hooda (supra), the Apex Court clearly ruled that what is forbidden to the legislature is by a bare declaration without anything more to directly overrule a judicial decision, as the OA filed by applicant is still sub judice and has not attained finality, this amendment carried out by the respondents with retrospective effect in no manner has nullified the decision of the court, which is yet to be arrived at. However, any judicial decision can be made ineffective by enacting a valid law on a topic within its legislative field. Fundamentally altering or changing it with legislative curative or utilizing effect of the conditions on which such decision is based. The grievance of the applicant as to the presumptive grievance of the act of giving effect to the amendment of Schedule I is to validate their illegal DPC held on 05.05.2006 and also to nullify OA 1389/2006. The only ground come forth is that the officers have been divided into two separate groups and the applicant has not been considered within first 30 officers. In this regard, we have meticulously gone into the material on record and what we find that after the cadre review proposal Schedule I has only been amended to include Ministry/Department-wise position of posts but there is no categorization of the officers in the amendment carried out. This has resulted in accrual of supplementary vacancies for the year 2005-2006 at SAG level but when only half of the officers were found eligible fulfilling the criteria. A proposal mooted to the Commission to fill up supplementary vacancies for the year 2005-06 and carry forward vacancies likely to be applicable for 2006-07 so relaxation was sought within the parameters of the rules and as a result thereof DPC held by the Commission on 05.05.2006 considered eligible officers. The aforesaid holding of the DPC by the Commission though subject matter of a different proceedings before the Tribunal, yet the amendment of Schedule even from 05.01.2006 would not have materially altered the situation, if assuming in law, the same would have been affected at an earlier date, as contended by the applicant, the only change brought forward vide amendment to Schedule I is departmentalization of the posts in various cadres in ISS as per the Ministry/Department as well as Offices. No other statutory provision contained under ISS Rules has undergone an amendment except an amendment carried on 14.09.2005.
36. The aforesaid conclusion now brings up to this cut off date of 5.1.2006 and its validity in law. A cut off date prescribed in the amendment to be the initial point of giving effect to amendment, there may be officers who are falling on both sides of this date. The cut off date is not always arbitrary or unreasonable. When it is established that the cut off date has intelligible differentia and reasonable nexus with the object sought to be achieved and is purposeful, mere effect on certain rights, which are not vested in character, the cut off date would not be ruled as arbitrary or unreasonable in the circumstances, as ruled by the Apex Court in Ramrao v. All India Backward Class Bank Employees Welfare Association and Ors. 2004 (1) SC SLJ 283 that the grievance that cut off date causes hardship is not a ground to declare it illegal. Following is the observation:
29. It is now well-settled that for the purpose of effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless cut off date so fixed is held to be arbitrary or unreasonable, the same cannot be set side as offending Article 14 of the Constitution of India. In the instant case, the cut off date so fixed having regard to the directions contained by the National Industrial Tribunal which had been given a retrospective effect cannot be said to be arbitrary, irrational, whimsical or capricious.
30. The learned Counsel could not point out as to how the said date can be said to be arbitrary and, thus, violative of Article 14 of the Constitution of India.
31. It is not in dispute that a cut-off date can be provided in terms of the provisions of the statute or executive order. In University Grants Commission v. Sadhana Chaudhary and Ors. (1996) 10 SCC 536. It has been observed:
21. It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: Union of India v. Parameswaran Match Works (1975) 1 SCC 305 : (1975) 2 SCR 573 at p. 579 and Sushma Sharma (Dr) v. State of Rajasthan 1985 Supp SCC 45 : 1985 SCC (L&S) 565 : (1985) 3 SCR 243 at p. 269.)
32. If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employee seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India.
33. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut-off date but, the fact that some persons or a section of society would face hardship, by itself cannot be a ground for holding that the cut-off date so fixed is ultra vires Article 14 of the Constitution.
34. In State of W.B. v. Monotosh Roy and Anr. (1999) 2 SCC 71, it was held:
13. In All India Reserve Bank Retired Officers' Association v. Union of India 1992 Supp (1) SCC 664 : 1992 SCC (L&S) 517 : (1992) 19 ATC 856 a Bench of this Court distinguished the judgment in Nakara, (1983) 1 SCC 305 : 1983 SCC (L&S) 145 and pointed out that it is for the Government to fix a cut-off date in the case of introducing a new pension scheme. The Court negatived the claim of the persons who had retired prior to the cut-off date and had collected their retiral benefits from the employer. A similar view was taken in Union of India v. P.N. Menon, (1994) 4 SCC 68 : 1994 SCC (L&S) 860 : (1994) 27 ATC 515. In State of Rajasthan v. Amrit Lal Gandhi (1997) 2 SCC 342 : 1997 SCC (L&S) 512 : JT (1997) 1 SC 421 the ruling in P.N. Menon case (supra) was followed and it was reiterated that in matters of revising the pensionary benefits and even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis has to be fixed for extending the benefits.
14. In State of U.P. v. Jogendra Singh (1998) 1 SCC 449 : 1998 SCC (L&S) 300 a Division Bench of this Court held that liberalized provisions introduced after an employee's retirement with regard to retiral benefits cannot be availed of by such an employee. In that case the employee retired voluntarily on 12-4-1976. Later on, the statutory rules were amended by Notification dated 18-11-1976 granting benefit of additional qualifying service in case of voluntary retirement. The Court held that the employee was not entitled to get the benefit of the liberalized provision which came into existence after his retirement. A similar ruling was rendered in V. Kasturi v. Managing Director, State Bank of India (1998) 8 SCC 30 : JT (1998) 7 SC 147.
15. The present case will be governed squarely by the last two rulings referred to above. We have no doubt whatever that the first respondent is not entitled to the relief prayed for by him in the writ petition.
35. In Vice Chairman & Managing Director, A.P.S.I.D.C. Ltd. and Anr. v. R. Varaprasad and Ors. 2003 (4) Supreme 245 in relation to 'cut off' date fixed for the purpose of implementation of Voluntary Retirement Scheme, it was said:
...The employee may continue in service in the interregnum by virtue of Clause (i) but that cannot alter the date on which the benefits that were due to an employee under the VRS to be calculated. Clause (c) itself indicates that any increase in salary after the cut off point/date cannot be taken into consideration for the purpose of calculation of payments to which an employee is entitled under the VRS.
36. The High Court in its impugned judgment has arrived at a finding of fact that the Association had failed to prove any malice on the part of the authorities of the Bank in fixing the cut off date. A plea of malice as is well-known must be specifically pleaded and proved. Even such a requirement has not been complied with by the writ petitioners.
37. If one has regard to the above, a cut off date can also be provided either in terms of provisions of statute or an executive order. Fixing a cut off date, those who are within the purview would form a different class. When a cut off date is fixed, generally a person who comes on the wrong side of it has a grievance of hardship, which is not itself a ground to hold the cut off date as unconstitutional.
38. The Constitution Bench of the Apex Court in D.S. Nakara and Ors. v. Union of India 1983 SCC (L&S) 145 as to the cut off date ruled as under:
The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be an there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark._
39. Applying the aforesaid ratio in the factual matrix of the present case, applicant_s challenge to the cut off date of 05.01.2006 is that it has been fixed only with a view to nullify the claim of the applicant in OA 1398/2006 and further that on classification of set of officers in the zone of consideration into two, applicant has become ineligible. It is stated that if the Board consists of co-opted Member from Department of Expenditure, Ministry of Finance, then the very purpose of giving effect to cadre review would be from the date it has obtained the approval, whereby the approval to the cadre review as per the RTI information received was on 08.09.2005 should have been the date when the process of creation of posts under the statutory rules of ISS was completed should be the date of effect of amendment is misconceived. The cut off date would not be set aside on mere ipsi dixit and only on the ground that it is non-suited to the individual person without affecting his vested right. Fundamental right is consideration for promotion, which has not been denied to applicant. He has a right to be considered for promotion and what has been done through amendment is not an alteration or modification to the ISS Rules but only change of the Schedule whereby all the cadres and the posts under ISS have been arranged Ministry/Department wise. Moreover, what we find that the revised Schedule has been approved by the competent authority has been preceded by an internal Selection Committee, which held its meeting on 17.08.2006. As per the transaction of Business Rules, 1961, though the ISS Rules defines the Controlling Authority through an amendment carried out as ISS Board but Rule 5(2) specifically provides that authorized strength would have to be fixed by the Controlling Authority with the concurrence of the Ministry of Finance. Accordingly, even if there is a co-opted Member from the Ministry of Finance in the Board, yet the decision by the Board has to be concurred by the Ministry of Finance separately and accordingly, as we find from the record, the Board has approved the cadre review proposal on 08.09.2005, which was approved by the Union Cabinet on 05.01.2006, which has been the date of implementation in retroact of the amendment is the date when the Ministry of Finance has approved it. Merely because the Board has approved it on 08.09.2005, would not be the date of its effect because the cadre review even after its approval by the Board would still be ineffective and will not be implemented till it is concurred with by the Ministry of Finance on specific approval, which is a subsequent event. This process when completed on 29.12.2005, time was taken to implement it, which, in all its rationale, has to be a future date, i.e., in the instant matter being 05.01.2006, is neither arbitrary nor unreasonable. The aforesaid date is not contrary to the ISS Rules, which lays down a methodology to increase the strength of the cadre by following due process, which when followed, attained finality on 29.12.2005 and accordingly, the notification issued giving restrospectivity to the amendment from 05.01.2006 does not offend the dicta of Article 14 of the Constitution of India.
40. We are also of the considered view that applicant having failed miserably to show that the cut off date fixed in any manner is unconstitutional or arbitrary. Although the right of consideration for promotion guaranteed to applicant has not at all been affected, yet his failure to established that his vested right has been affected or he has been prejudiced in any manner by this cut off date, merely because he falls on the other side of this cut off date, the cut off date is neither unreasonable nor unconstitutional in any manner.
41. Another legal infirmity observed is that whereas respondents have implemented the amendment and its restrospectivity by promoting 26 Officers vide Office Order dated 26.07.2006, only one of the officers i.e. respondent No. 3, has been impleaded in the guise of representative capacity, yet the statement made by R-3 would indicate that he has not ventilated any grievance and has not been representing the cause of other promotees and has only been fighting his individual right, which does not bring him within the ambit of likely affected person in a representative capacity and in such an event, non-impleadment of the affected parties i.e. promotees is fatal and cannot be countenanced in law in the wake of principles of natural justice, as ruled by the Apex Court in M.V. Ravindranath v. Union of India 2000 (10) SCC 474.
42. Resultantly, for the foregoing reasons, we find the OA as bereft of merit, which is accordingly dismissed. No costs.