Andhra HC (Pre-Telangana)
Secretary, A.P. Social Welfare ... vs P. Venkata Kumari on 27 April, 2001
Equivalent citations: 2001(4)ALD368, 2001(3)ALT366
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, C.J.
1. These appeals and the writ petitions involve the question as regards vires of the A.P. (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act 2 of 1994 as amended by Act 3 of 1998 and Act 27 of 1998 inter alia on the ground that the judgment of this Court as affirmed by the Supreme Court of India has been sought to be overruled by taking recourse to legislative action. The Apex Court in State of Haryana v. Piara Singh, , has asked the respective State Governments to frame a scheme for regularisation of ad hoc, temporary and NMR employees. The State assured before the Supreme Court that a scheme is going to be formulated for regularisation of the daily wage employees. In terms of observations made by the Apex Court, the Government of Andhra Pradesh issued G.O. Ms. No.212, Finance and Planning, (FW.PC III) Department, dated 22-4-1994 whereby and whereunder the services of temporary employees appointed on daily wages, NMR or on consolidated pay who had put in minimum five years of service as on 25-11-1993 were sought to be regularised subject to the fulfilment of following conditions:
The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his or her services have to be regularised.
They should be within the age limits as on the date of appointment as NMR/ daily wage employee.
The Rule of Reservation wherever applicable will be followed and back-log will be set-off against future vacancies.
The sponsoring of candidates from Employment Exchange is relaxed.
Absorption shall be against clear vacancies of posts considered necessary to be continued as per workload excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee.
In the case of Workcharged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on workcharged is at a fixed percentage of P.S. charges and as soon as the work is over, the services of workcharged establishment will have to be terminated, they shall be adjusted in the other Departments, District Offices provided there are clear vacancies of last Grade Service.
2. The Government of Andhra Pradesh enacted A.P. (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act 2 of 1994 for brevity, hereinafter referred to as (Act No.2 of 1994) for regulating appointments and prohibiting irregular appointments in offices and establishments under the control of the State Government, local authorities, Corporations owned and controlled by the State Government and other bodies established under a law made by the Legislature of the State to rationalise the staff pattern and pay structure of the employees therein and for matters connected therewith or incidental thereto.
3. Section 2(ii) of the Act No.2 of 3994 defines 'daily wage employee' to mean Any person who is employed in any public service on the basis of payment of daily wages and includes a person employed in any public service on the basis of payment of daily wages and includes a person employed on the basis of nominal muster roll or consolidated pay either, on full time or part time or piece rate basis or as a workcharged employee and any other similar category of employees by whatever designation called other than those who are selected and appointed in a sanctioned post in accordance with the relevant rules on a regular basis.
4. Section 2(vi) defines 'public service' to mean Services in any Office or establishment of-
the Government;
a local authority;
a Corporation or undertaking wholly owned or controlled by the State Government;
a body established under any law made by the Legislature of the State whether incorporated or not, including a University; and any other body established by the State Government or by a Society registered under any law relating to the registration of societies for the time being in force, and receiving funds from the State Government either fully or partly for its maintenance or any educational institution whether registered or not but receiving aid from the Government.
5. Section 3 of the said Act lays down prohibition of daily wage appointments and regulation of temporary appointments in the following terms:
The appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee is hereby prohibited.
No temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange.
6. Section 4 prohibits any requirement in any public service to any post in any class, category or grade except-
from the panel of candidates selected and recommended for appointment by the Public Service Commission/College Service Commission where the post is within the purview of the said Commission;
from a panel prepared by any Selection Committee constituted for the purpose in accordance with the relevant rules or orders issued in that behalf; and from the candidates having the requisite qualification and sponsored by the Employment Exchange in other cases where recruitment otherwise than in accordance with clauses (a) and (b) is permissible.
Explanation :--For the removal of doubts it is hereby declared that nothing in this section shall apply to compassionate appointments made in favour of son/daughter/spouse of any person employed in public service who dies in harness or who retires from service on medical grounds, in accordance with the relevant orders issued from time to time.
7. Section 5 provides that no salary bill shall be passed unless a certificate is issued by the appointing authority to the effect that the appointment has been made in accordance with the Section 4.
8. Section 6 provides for a penal clause in the following terms:
Where any holder of an elective office or any officer or authority makes any appointment in contravention of the provisions of this Act :--
it shall be deemed in the case of the holder of an elective office that he has abused his position or power and accordingly the competent authority shall initiate proceedings for his removal; and in the case of an officer or authority it shall be deemed that he is guilty of misconduct and the competent authority shall initiate action under the relevant disciplinary rules;
In addition to taking action under subsection (1) the pay and allowances paid to the person whose appointment is in contravention of the provisions of this Act shall be deemed to be an illegal payment and a loss to the Government or, as the case may be, to the concerned institution and the same shall be recoverable by surcharging the same under the Andhra Pradesh State Audit Act, 1989 against the person, officer or authority who makes such appointment in contravention of the provisions of this Act or where such surcharge is not possible under the said Act in accordance with such manner as may be prescribed including as arrears of land revenue.
9. Section 7 provides for bar for regularisation of services. Section 9 provides for abatement of claims irrespective of any judgment or order passed by the Court, Tribunal or any other authority.
10. Section 11 provides for constitution of Review Committee to review the existing staff pattern in any office or establishment employing persons belonging to any public service keeping in view the workload of such office or establishment; and the pay scales, allowances, ex-gratia, bonus, pension, gratuity and other terminal benefits and perquisites applicable to the post belonging to any public service of such office or establishment (other than the teaching staff of the Universities) keeping in view the qualifications and job requirements of each such post.
11. Upon undertaking the review, the Committee was required to submit a report with its recommendations to the Government for such action as may deem it proper.
12. Section 13(1) reads thus:
Any person or authority who contravenes the provisions of this Act shall apart from the penalties otherwise provided for, be punishable with imprisonment for a term which shall not be less than six months and which may extend upto two years and also with fine which shall not be less than five thousand rupees which may extend upto ten thousand rupees.
13. Section 14 provides for penalties for abetters. Section 15 provides for offences by the Cpmpanies.
14. A non abstante clause has been provided for in Section 17. By reason of Section 16 of the Act, bar of jurisdiction of civil Court has been created. Guidelines issued in the schedule to the Act are required to be taken into consideration for interpretation and implementation of the Act,
15. The aforementioned G.O. Ms. No. 212 as regards the following "Government accordingly decided that the services of such persons who worked continuously for a minimum period of 5 years and are continuing on 25-11-1993 be regularised by the appointing authorities subject to fulfilment of the certain conditions" came up for consideration before the learned single Judge of this Court in Writ Petition Nos.7175 of 1997 and batch. It was held that the requirements for continuous work for a minimum period of five years and continue to work as on 25-11-1993 are not be read together and those who have put in five years and were working on 25-11-1993 would be entitled to the benefit of the said provision. The aforementioned decision of the learned single Judge was affirmed by a Division Bench of this Court. A special leave petition filed there against was dismissed by the Supreme Court of India. The State thereafter by reason of the Amendment Act No.3 of 1998 amended Act 2 of 1994 which came into force with effect from 3-1-1998 and by reason of Section 2 of the said Act, clause (c) was inserted in sub-section (4) of Section 2 in the following terms:
to the appointments made in favour of members of Scheduled Castes or Scheduled Tribes, who or whose parents or spouse are subjected to atrocities, in accordance with the relevant orders issued from time to time.
16. By reason of Section 2 of the Amendment Act, Section 7 of the principal Act was amended in the following manner:
In Section 7 of the principal Act:-
in the opening paragraph for the expression, "Section 3 and", the expression, "Section 3 and no persons" shall be substituted;
in the first proviso, for the words "provided that", the words "provided also that" and in the second proviso, for the words "provided further that" the words "provided also that" shall respectively be substituted;
After the opening paragraph and before the first proviso so amended, the following provisions shall be inserted, namely :
Provided that the services of a person, who worked on daily wage/NMR/ consolidated pay/ contingent worker on full time basis continuously for a minimum period of five years and is continuing as such on the date of the commencement of the Act shall be regularised in accordance with the scheme formulated in G.O. Ms. No.212, Finance and Planning (FW.PC.III) Department, dated the 22-4-1994;
Provided further that the services of a person who worked on part time basis continuously for a minimum period of ten years and is continuing as such on the date of the commencement of this Act shall be regularised in accordance with the scheme formulated in GO (P) 112, Finance and Planning (FW.PC.III) Department, dated the 23rd July, 1997."
17. The vires of the said Act came up for consideration before the learned single Judge of this Court in WP No.19849 of 1996 and other cases. The question as to whether a scheme should be framed also for the part-time employees came up for consideration before this Court and this Court by interim orders dated 25-4-1997 in WPMP No.24471 of 1996 and WVMP No.961 of 1997 directed the State to formulate a scheme to regularise part-time employees pursuant whereto a scheme was formulated stating:
Government accordingly after careful consideration of this issue hereby formulate a scheme for regularisation of the services of the persons appointed on part-time basis. Government have taken a decision that the services, of such persons who has worked continuously as part-time workers for a minimum period of ten years and are continuing as on 25-11-1993 the date on which the A.P. (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 (Act 2 of 1994) came into force, be regularised by the appointing authorities subject to the fulfilment of the following conditions:
Absorption shall be against clear vacancies of posts considered necessary to be continued as per work load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission or as the case may be, the District Selection Committee.
The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his or her services have to be regularised.
The person should be within the age limit as on the date of appointment as part-time employee.
The Rule of Reservation wherever applicable will be followed and back-log will be set-off against future vacancies.
The sponsoring of candidates from Employment Exchange is relaxed.
If there are two candidates, one part-time and the second one a full time employee (daily wage employee) of any category or name and there exists only one vacancy, the senior most between the two in terms of continuous service already rendered prior to 25-11-1993 treating two years of part-time service as one year of full time service, relative seniority will be calculated and regularisation will be suggested for the senior among the two accordingly.
The regularisation of services of full time employee already made in terms of G.O. Ms. No.212, Finance and planning (FW.PC.III) Department dated 22-4-1994 will not be reopened for giving effect to the present order.
18. The learned Advocate-General appearing on behalf of the appellants inter alia submitted that by reason of the provisions of the Act No.3 of 1998 and Act No.27 of 1998, the State only intended to make amends to the legislative defects and as such the question of overruling any judgment passed by this Court as affirmed by the Supreme Court did not and should not arise.
19. According to the learned Counsel, the cut-off date was fixed for consideration of the cases by the Government and the same does not mean that the judgment of this Court has been overruled. The learned Advocate-General contends that by reason of the Amendment Act, there has been no direct overruling and merely Legislature has rectified its mistake. The learned Advocate-General would urge that the learned single Judge erred in passing the impugned judgment insofar as while dealing with pure legal question and the extraneous matters which were not germane for arriving at a decision insofar as proviso appended to Section 7-A which had been recast thereby would amount to judicial legislation although the same is impermissible in law. The learned Counsel would contend that a learned single Judge committed serious error in issuing a writ of the nature of mandamus directing the State to create posts. Our attention has been drawn in this connection to the following observations of the learned single Judge:
The law is well settled on this aspect. Though number of decisions were cited, I feel that I need not refer to all of them as the legal position was expounded succinctly in State of Haryana and others v. Kamal Co-operative Farmers' Society Limited and others (AIR 1993 SCW 3432). Their Lordships of the Supreme Court held that effect of the proviso, introduced to Sections 7(1), 13, 13-A to 13-D in the principal Act, viz., Punjab Village Common Lands (Regulation) Act, 1961 (as amended by the Haryana Amendment Act of 1974) is intended to make the earlier decisions of the High Court ineffective. The relevant portion of paragraphs 30 and 37 are extracted as hereunder:
"Under our Constitution no Legislature has the power to abrogate civil Courts decrees or orders or judicial adjudications by merely declaring under a law made by it that such decrees or orders or adjudications are no longer valid or binding on the parties, for such power of declaration would be a judicial function which cannot be encroached upon by a Legislature and the only way by which a competent Legislature can make the judicial adjudications, decrees or orders ineffective is by fundamentally altering the law on which they are based, is well settled.....
Thus it becomes clear that a Legislature while has the legislative power to render ineffective the earlier judicial decisions, by removing or altering or neutralising the legal basis in the unamended law on which such decisions were founded, even retrospectively, it does not have the power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid or not binding for such power if exercised would not be a legislative power but a judicial power which cannot be encroached upon by a Legislature under our Constitution."
20. The learned single Judge in this connection held:
From the decisions cited above, the law is now well settled i.e., the Legislature is having power to remove the defect pointed out by the Courts. But the Legislature is incompetent to amend the Act by way of declaration nullifying the effect of the judgments as it amounts to encroaching upon the powers of the judiciary to interpret the law.
21. The learned Advocate-General conceded that except the section which was made retrospective, all other sections came into force when the Act was published in the gazette and thus, in between the period from 1994 and 1998, the old law would make good. As regards the validity of the amendment, the learned Advocate-General would urge that the writ petition is not maintainable. No direction could have been issued contrary to the mandate of the Act for the said purpose, the writ petition is not maintainable. As regards the validity of the Amendment Act, the learned Advocate-General submits that by reason of the said Act, the judgments are not overruled and the basis of the judgments rendered by this Court had been clarified, the said Act is infra vires.
22. The learned Advocate-General submitted that existence of a sanctioned post is a condition precedent for filling up permanent post. He relied upon:
Piara Singh 's case (supra), State of U.P. and others v. U.P. Madhyamik Shiksha Parishad Shramik Sangh, , Slate of Haryana v. Jasmer Singh, .
23. It was next contended that as the concerned employees were appointed de hors the rules, they did not derive any right whatsoever to continue in the said post. Tracing the power of judicial review in such matters, reference has been made to the following decisions of the Apex Court. Observations of the Apex Court in Piara Singh's case read as under:
The next question is whether the orders issued by the two Governments were arbitrary and unreasonable insofar as they prescribed that only those employees who had been sponsored by Employment Exchange should alone be regularised. In our opinion, this was a reasonable and wholesome requirement designed to curb and discourage back door entry and irregular appointments. The Government orders say that all those who have been sponsored by Employment Exchange or have been appointed after issuing a public advertisement alone should be regularised. We see no unreasonableness or invalidity in the same. As stated above, it is a wholesome provision and ought not to have been invalidated. Moreover, as pointed out hereinbefore, it is not found by the High Court that the writ petitioners were appointed only after obtaining a non-availability, certificate from the Employment Exchange. The decision relied upon by the High Court does not say that even without such a certificate from Employment Exchange, an appointment can be made or that such appointment would be consistent with the mandate of Articles 14 and 16.
We must also say that the further requirement prescribed in the orders viz., that the employees must have possessed the prescribed qualifications for the post at the time of his appointment on ad hoc basis is equally a valid condition. Indeed, no exception is taken to it by the High Court.
Now coming to the decision that all those ad hoc, temporary employees who have continued for more than an year should be regularised, we find it difficult to sustain it. The direction has been given without reference @ page-SC 2145 to the existence of a vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him -which means creation of a vacancy (b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back-door (c) he was not eligible and or qualified for the post at the time of his appointment (d) his record of service since his appointment is not satisfactory. These are in addition to some of the problems indicated by us in para 12, which would arise from giving of such blanket orders. None of the decisions relied upon by the High Court justify such wholesale unconditional orders. Moreover, from the mere continuation of an ad hoc employee or one year, it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further, there can be no rule of thumb' in such matters. Conditions and circumstances of one unit may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. Judged from this standpoint, the impugned directions must be held to be totally untenable and unsustainable.
The High Court has also directed that all those employees who fall within the definition of 'workmen' contained in the Industrial Disputes Act will also be entitled to regularisation on par with the work-charged employees in whose case it is directed that they should be regularised on completing five years of service in Punjab and four years of service in Haryana. This direction is given in favour of those casual labour and daily wagers who fall within the definition of workmen. Insofar as work-charged employees, daily wage workers and casual labourers who do not fall within the definition of workmen are concerned, the High Court had directed their regularisation on completion of one year's service. We find this direction as untenable as the direction in the case of ad hoc/temporary employees. Insofar as the persons belonging to the above categories and who fall within the definition of workmen are concerned, the terms in which the direction has been given by the High Court cannot be sustained. While we agree that persons belonging to these categories continuing over a number of years have a right to claim regularisation and the authorities are under an obligation to consider their case for regularisation in a fair manner, keeping in view the principles enunciated by this Court, the blanket direction given cannot be sustained. We need not, however, pursue this discussion in view of the orders of the Government of Haryana contained in the letter dated 6-4-1990 which provides for regularisation of these persons on completion of ten years. We shall presently notice the contents of the said letter. In view of the same, no further directions are called for at this stage. The Government of Punjab, of course, does not appear to have issued any such orders governing these categories. Accordingly, there shall be a direction to the Government of Punjab to verify the vacancy position in the categories of daily wagers and casual labour and frame a scheme of absorption in a fair and just manner providing for regularisation of these persons, having regard to their length of service and other relevant conditions. As many persons as possible shall be absorbed. The scheme shall be framed within six months from today.
24. In Santosh Kumar Verma v. State of Bihar, , it was observed:
Section 6(3) of the Act only empowers the Authority to appoint the Secretary, and other officers and employees of the Authority. The power under the proviso is only a breathing elbow power given to the Authority to make temporary appointments so that the work of the Development Authority goes on pending recruitment. Therefore, when the advertisement was made for the recruitment, it was obviously in furtherance of the power flown under the proviso for a limited period. Thereby, the appointments obviously are only temporary appointments. The appellants realising the limited temporary tenure of the appointments had sought assistance of the Government for regularisation which was negatived by the Public Service Commission. It is seen that these posts are within the purview of the Public Service Commission. Therefore, the Government sought the concurrence of the Public Service Commission and the Public Service Commission had not concurred and, in our view, correctly with the request made by the Government. Therefore, any regularisation in violation of the recruitment to be made by the Public Service Commission is in contravention of the law. The High Court, therefore, rightly did not issue any mandamus for regularisation of the services made in contravention of the rules to violate and no mandamus or direction would be issued to violate law.
25. In Ashwani Kumar v. State of Bihar, , it was observed:
In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and if it is found that the concerned incumbents have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the concerned employees can give their best by being assured security of tenure. But this would require one pre-condition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is bound to have suffered from some flaw in the procedural exercise though the person appointing, is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for such irregularity in the initial appointment by competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the concerned incumbent. But even in such case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing the recruitment. In any case back door entry for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could even be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such illegal entrant would ever survive for consideration however, competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularisation and whatever purported regularisation was effected in their favour remained an exercise in futility. Learned Counsel for the appellants, therefore, could not justifiably fall back upon the orders of regularisation passed in their favour by Dr. Mallick. Even otherwise for regularising such employees well established procedure had to be followed. In the present case it was totally bypassed. In this connection we may profitably refer to Government Order dated 31st December, 1986 to which our attention was invited by learned Counsel for the appellants. The said Government Order is found in the additional documents submitted in CA Nos.10758- 59 of 1995 at Annexure-IV Secretary to Government of Bihar, Health Department, by communication dated 31-12-1986 had informed all Regional Deputy @ page-SC 1639 Directors. Health Services: Tuberculosis Civil Surgeon-cum-Chief Medical Officer; and other concerned authorities in connection with the compliance and implementation of the orders passed and instructions issued by Deputy Director (Tuberculosis) Bihar, Patna under the Tuberculosis Control Programme covered under the 20-Point Programme. It was stated in the said communication that steps will be taken to fill up sanctioned Third and Fourth Grade posts as soon as possible according to the prescribed procedure and all possible efforts should be made to achieve the fixed targets in a planned and phased manner. Even this letter clearly indicates that the posts had to be filled up by following the prescribed procedure. Despite all these communications neither the initial appointments nor the confirmations were done by following the prescribed procedure. On the contrary all efforts were made to by-pass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so called regularisations and confirmations could not be relied on as shields, to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme by Dr. Mallick. For all these reasons, therefore, it is not possible to agree with the contention of learned Counsel for the appellants that in any case of the confirmations given to these employees have them sufficient cloak of protection against future termination from services. On the contrary all the cobwebs created by Dr. Mallick by bringing in this army of 6000 employees under the scheme had got to be cleared lock, stock and barrel so that public confidence in Government administration would not get shattered and arbitrary actions would not get sanctified.
26. It was submitted that the power ofthis Court could only be exercised directing consideration of the cases of the applicants and this Court in exercise of its writ jurisdiction under Article 226 of the Constitution could not have issued a writ of the nature of mandamus directing the State to regularise their services and that too with retrospective effect. Reliance in this connection has been placed on Himachal Road Transport Corporation v. Dinesh Kumar, .
We are of the view that the Himachal Pradesh Administrative Tribunal aqted illegally and without jurisdiction in passing the orders dated 27-3-1995 and 6-3-1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally @ page-SC 2228 unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post. We are or the view that directions given by the Administrative Tribunal, in these two appeals, are totally unauthorised and illegal. We are, therefore, constrained to set aside the orders appealed against. We hereby do so and allow the appeals.
27. Reliance has also been placed on Anjemma v. A.P. Women's Co-op Fin, Corpn.,.
28. The learned Counsel would submit that a direction to create posts is impermissible and in this connection, he relied on the decision in Piara Singh's case (supra).
29. Regularisation of their services, contends the learned Advocate-General, was sine quo non for praying wages in the time scale.
30. It may be noticed here that no daily wage employee can claim the wages in the time scale attached to the post without regulation of the services. In State of U.P, v. U.P. Madhyamik Shiksha Parishad Shramik Sangh, , it was held:
It is an administrative procedure that creation of a post is a condition for filling up the post on permanent basis, the exigencies of the administration and the need for the creation of number of posts are matters of executive policy by the appropriate Government. It is stated in the special leave petition filed in this Court that during the examinations conducted by the Board, when the exigencies reconducted by the demand for doing the manual work like lifting of bundles, pasting of envelopes and shifting of answer books etc., the daily wagers are engaged and a sum of Rs.25/- per day was being paid as fixed by the District Magistrates of Allahabad under the Minimum Wages Act. Unless the posts are created, they are not entitled to be fitted into any regular post. The performance of the manual duty may be like the duty of regular class IV employees. However, they are not entitled for the payment of equal wages so long as there are no posts created in that behalf. We can understand that if there are vacant posts available in Class IV and they are filled up by appointing them to these posts on daily wages performing the same duties of regular employees. Perhaps there may be justification for issuing directions for regularisation of the service according to rules and payment of the salary to the post to which they are fitted. But in view of the fact that no posts are created or existing, we cannot uphold the direction issued by the High Court to pay equal wages or to regularise their services.
It is stated in paragraph 5(h) of the SLP that the Board has been regularising daily wagers in Class IV service as and when the post is created or falls vacant, on the basis of the length of engagement of the daily wagers and performance of the work. The procedure so adopted is fair. Under these circumstances, we think that the appropriate course would be that as and when regular posts are created or posts fall vacant, these daily wage employees, on the basis of their seniority, length of service and performance of work, may be considered for regularisation according to rules and rules of reservation in vogue. Until then their services will be taken as and when exigencies would arise and payment of daily wages made as determined by the District Magistrate from time to time. @ page-SC 709.
31. In Jasmer Singh's case (supra) it was observed :
The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily-rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfil the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay-scale of the regularly employed.
The High Court was, therefore, not right in directing that the respondents should be paid the same salary and allowances as are being paid to regular employees holding similar posts with effect from the dates when the respondents were employed. If a minimum wage is prescribed for such workers, the respondents would be entitled to it if it is more than what they are being paid.
32. In State of Haryana v. Surinder Kumar, , it was observed:
That contention cannot be given acceptance for the reason that since the respondents were appointed on contract basis on daily wages, they cannot have any right to a post as such until they are duly selected and appointed. Merely because they are able to manage to have the posts interchanged, they cannot become entitled to the same pay-scale which the regular clerks are holding by claiming that they are discharging their duties as regular employees. The very object of selection is to test the eligibility and then to make selection in accordance with rules prescribed for recruitment. Obviously the respondent's recruitment was not made in accordance with the rules.
33. As regards the temporary employees, the learned Counsel would urge that they had no vested right to continue in service and the Court should not issue any direction for their regularisation. The learned Counsel submitted that the statutory rule has been framed relating to recruitment in Government service to the effect that names of unemployed should be sponsored by the Employment Exchange. Direction in contra must be held to be void in law. According to the learned Counsel, no direction could be issued to appoint an employee contrary to the mandatory provisions of the statute. Reliance in this connection has been placed on Union of India and others, etc. v. N. Hargopal, and in Arm Tewari v. Zila Mansavi Shikshak Songh, 1998 SC 331.
34. The learned Advocate-General would submit that by reason of the impugned judgment, the very philosophy of regularisation of the employees as envisaged under GO.212 had been destroyed.
35. Even if the Act is prospective this does not preclude the applicability of the Sections 7-A to facts and circumstances existing prior to the date the Act came into force. Section 7-A of the 1998 Act specifically states that matters pending on that date shall abate. So the situation as it exists on the date Act 27 of 1998 comes into force has to be taken into account. This is a post facio provision and the section would apply. In several pronouncements of the Supreme Court it has been laid down that the inhibition against retrospective construction is however not a rigid rule and must vary secundam materium. See 1937 (1) All.ER 126 and 1964 (1) All.ER 681 at 687. It has also been held by the Supreme Court that the rule against retrospective construction is not applicable to the statute merely 'because a part of the requisites for its action is drawn from a time antecedent to its passing'. See 1953 SC 394 at 398; 1954 SC 158 at 163; 1961 SC 307 at 310; 1964 SC 464 at 468; 1965 SC 1491 at 1493; 1966 SC 1953 at 1957; 1968 SC 1489 at 1494; 1983 SC 130 at 143; and 1987 (4) SCC 37 at 38. Craies 6M Edn. 387 Maxwell 11 M Edn 211 (Singh 7th Edn. (1999) p.369). See also pages 37 and 38 validating Acts.
36. Applying this test, it is clear that Section 7-A of the 1998 Act would apply to all cases of regularisation which have not attained finality by the date of Act came into force. So all the claims and writ petitions abate and can no longer be pursued. In this context, it is necessary to emphasise that contrary to the assertion of the writ petitioner's the claim for regularisation cannot be equated to a vested or crystallised right, which is protected when an Act is not made expressly retrospective.
37. Mr. Subba Reddy, learned Counsel appearing in some connected matters submitted that the continuous service for a period of five years as on 25-11-1993 cannot be said to be bad in law. According to the learned Counsel, a policy decision unless it is held to be arbitrary or capricious cannot be tinkered with by a Court of law. According to the learned Counsel Act 27 of 1998 has been enacted only for the purpose of giving effect to the said policy decision. Such a cut-off date according to Mr. Subba Reddy, is not violative of Article 14 of the Constitution. Sweeping direction by a Court of law according to the learned Counsel should not have been issued by the learned single Judge.
38. The learned Counsel would contend that the benefit of the judgment was sought to be taken away and thus the same is invalid in law. According to the learned Counsel, the intention of the Legislature in that regard must be gathered from amendment to Section 7-A of the main Act carried out by Sections 4 and 5 of the Amendment Act in terms whereof five years' continuous service as on 25-11-1993 was made the basis for giving benefit of regularisation.
39. The conclusions of the learned single Judge were :
(1) The Amending Act No.27 of 1998 to Act 2 of 1994 is neither intended to cure that defect pointed out by the Court nor any clarification is sought to be made to the existing legislation and as such it offends the doctrine of separation of powers as envisaged under the Constitution of India.
(2) This Court is having ample powers to lift the veil to find out whether the legislative declaration is a valid one or not.
(3) Judicial pronouncements binding on the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgments and is not in the realm of legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect.
(3a) The Legislature is incompetent to amend the Act by way of a declaration nullifying the effect of the judgments as it amounts to encroaching upon the powers of judiciary to interpret the law.
(4) Right to employment being a new form of property, the impugned Act violates Articles 16 and 20 of the Constitution of India apart from Articles 39-A, 41,42 and 43 of Directive Principles of State Policy.
(5) Society is to remain, social justice is the order and economic justice is the rule of the day and the law Courts have to raise up to the occasion and grant relief to a seeker of a just cause and grievance.
(6) The economic growth is not to be measured only in terms of production and profits. It has to be gauged primarily in terms of employment and earnings of the people. Man has to be the focal point of development.
(7) As the Act is neither reasonable nor just and fair and it suffers from the vice of arbitrariness and as such it offends Article 14 and Article 21 of the Constitution of India.
(8) No ordinary law made by any Legislature can curtail or affect the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India and the orders/ directions given by the Court from time to time in various cases are in no way adversely affected by the abatement provision either under Section 9 of the Principal Act or under Section 7-A of the Act introduced by the impugned amending Act.
(9) The Constitution is founded on nice balance of power among three wings of the State, namely, the Executive, the Legislature and the Judiciary and by a legislative fiat the power of the Courts to adjudicate on the validity of the laws made by the Legislature vested in the Superior Courts under Articles 32 and 226 and 227 of the Constitution of India cannot be taken away even by a constitutional amendment, leave apart, by an ordinary law made by the Legislature. Once the rights of the parties are crystallised under the orders of the Courts exercising plenary powers, the Legislature is incompetent to make any law setting at naught the effect of the judgment and it cannot take away the rights accrued to the petitioners.
(10) Only Section 3(1) of the Amendment Act providing employment to the children of the person died in harness was given retrospective effect with effect from 28th October, 1996 and the remaining provisions came into force from the date of enactment.
(11) Any Act which takes away or impairs vested rights acquired under existing laws must be presumed to have been made prospectively unless retrospective effect is given to the legislation in saying the words in the Act itself.
(12) The temporary appointments on starving wages are necessitated due to creation of these organisations without infrastructure or rules governing the service conditions of the employees and without sanctioned staff strength.
(13) It is too late in the day to contend that all these petitioners were appointed indiscriminately without following rules of procedure so on and so forth and in fact the Government encouraged this sort of appointment to wriggle out of its obligations to pay living wages in the event the appointments are made following the rules of procedure. More so, having realised the required funds from time to time and the pay bills, all these organisations are subjected to both pre and post audit.
40. Having regard to the judgment proposed to be passed by us it may not be necessary to refer to all the decisions cited at the Bar.
41. The Legislature has a right to enact a validating Act in a case where a law has been declared to be ultra vires upon removing the defect pointed out by the Court. But the Legislature is not entitled to overrule a judgment.
42. Having regard to the well settled principles of law as enunciated by the decisions referred to by the learned Counsel for the parties the only question which would arise for consideration is as to whether by reason of Act 27 of 1998 the Legislature has overruled the decision of this Court or not.
43. G.O. Ms. No.212 admittedly was issued by way of a policy decision having regard to the decisions of the Apex Court in Piera Singh's case (supra). The said policy decision did not have a force of statute. The policy decision, however, has the force of law having been issued in terms of Article 162 of the Constitution of India. It is now a well settled principle of law that the State in exercise of its power under Article 162 of the Constitution read with the provisions of the General Clauses Act amend, aller or withdraw the benefits granted to the citizens by reason of a policy decision. In K.P. Perumal v A&N Administration, 2000 (1) CHN 866, it was observed:
"The Lieutenant Governor is merely a person delegated with functions of an Administrator in terms of Article 239 of the Constitution of India. He had not been conferred any power to make any law which is exclusively within the domain of the President. However, he can issue executive instructions in such fields and in respect of the matter which is not covered by any legislation. An executive instruction issued or a policy decision taken in favour of a trespasser would be subject to fulfilment of the conditions imposed thereby. Undoubtedly, the same can be modified, amended or rescinded. A policy decision taken may even be withdrawn.
44. The question of taking recourse to the validating legislation would arise only in relation to an act which had been declared ultra vires and not in relation to a policy decision.
45. As noticed hereinbefore a learned single Judge of this Court while interpreting the said policy decision inter alia held that for the purpose of getting their services regularised the employees were not required to have five years continuous service as on 25-11-1993. The aforementioned interpretation of G.O. Ms. No.212 was upheld by the Apex Court. The Apex Court, however, in District Collector v. M.L Singh, , held:
We have heard the learned Counsel for the parties. These matters relate to regularisation and payment of wages to the respondents who were employed on daily wage basis. By the impugned judgment the Division Bench of the High Court, while affirming with modification the order passed by the learned single Judge has directed that all employees who have completed five years of continuous service should be considered for regularisation in accordance with the terms of G.O. Ms. No.212, dated April 22, 1994 and that they should be paid their wages at par with the wages paid to the permanent employees of that category. As regards payment of wages there is no dispute between the parties that the same have to be paid from the date of regularisation. Insofar as regularisation is concerned, we are of the view that the High Court has rightly directed that on the basis of the Notification G.O. Ms. No.212, the respondent employees shall be regularised with effect from the date or dates, they completed five years' continuous service. It is, however, made clear that the order conditions laid down in the said G.O. Ms. No.212 will have to be satisfied for the purpose of regularisation. The special leave petitions are disposed of accordingly.
46. Compliance of the requirements of G.O. Ms. No.212 subject to the aforementioned interpretation of this Court was mandatory.
47. It must also be taken note of the fact that Act 27 of 1998 was given only a prospective effect. The interpretation of G.O. Ms. No.212 thus held the field till the aforementioned Act 27 of 1998 came into force.
48. If by reason of a power under Article 162 of the Constitution the State can amend, alter or withdraw a policy decision we fail to see any reason as to why the Legislature cannot do the same. If this proposition of law is accepted, in truth and substance, Act 27 of 1998 may not be considered to be a validating statute. By Act 3 of 1998, however, G.O. Ms. No.212 had been accorded statutory sanction. Only by reason of Act 27 of 1998, certain restrictions had been put as regard thereto.
49. By reason of imposition of such restriction the vested right of an employee had not been taken away inasmuch as even in terms of G.O. Ms. No.212 only a person had a right to be considered for regularisation subject to his fulfilment of the conditions laid down therein. It is always open to the State by way of a policy decision or legislation to impose more rigorous condition in the matter of regularisation of service having regard to the fact that regularisation in terms of Article 16 of the Constitution cannot be regarded as a mode of recruitment. Regularisation of service being contrary to the statutory rules framed in this regard. But for the said statute regularisation would be ultra vires Article 309 of the Constitution. Regularisation of service in terms of a policy decision or a statutory rule would thus be exception to clause (2) of Article 16 of the Constitution.
50. Keeping in view the prospective effect given to Act 27 of 1998, all persons who have completed five years of service as on the date of coming into force thereof would be entitled to be considered for regularisation of their services. By reason of the validating Act the judgment of this Court cannot be said to have been overruled. It is now a well settled principle of law that a validating Act may even interfere with judgment or order of competent Court provided it, by retrospective legislation, removes the clog of invalidity or the basis which had led to those judgments. The learned Advocate-General, in our opinion, rightly contends that only the defective drafting made in the policy decision of the State by reason of G.O. Ms. No,212 was sought to be rectified by reason of Act 27 of 1998. In S.S. Bold v. B.D. Sardana, , the Apex Court held:
The aforesaid changes and alterations in the Act itself and giving it retrospective effect w.e.f. the date when the State of Haryana came into existence and consequently the service of engineers came into existence, rendered the earlier decisions of this Court in Sehgal and Chopra ineffective. The provisions of the Act and the definition of "service" in Section 2(12) (c), proviso to Section 5(2) and the criteria for promotion which was engrafted in Section 12(2) and making it retrospective w.e.f. 1-11-1966, when interpreted lead to the only conclusion that this Court could not have rendered the decision in Sehgal and Chopra on the face of the aforesaid provisions of the Act. It is, therefore, not a case of Legislature by mere declaration without anything more overriding a judicial decision but a case of rendering ajudicial decision ineffective by enacting a valid law within the legislative field of the Legislature. It would be appropriate to extract a passage from the judgment of this Court in, Indian Aluminium Co, v. Slate of Kerala, = (1996 AIR SCW 1051), to which two of us were parties (Ramaswamy, J. and Pattanaik, J.) (Para 56 of AIR) @ page-SC 32 10.
"In a democracy governed by rule of law, the Legislature exercises the power under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law. Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. In order that rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained. In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made".
187. It would be appropriate now to examine the different citations made at the Bar. Mr. Sachar, the learned senior Counsel in support of his contention that the impugned judgment is essentially a usurpation of the judicial power by the Legislature relied upon the decisions of this Court in, B.S. Yadav v. State of Haryana and Pritpal Singh v. Stale of Punjab, , State of Gujarat etc. v. Raman Lal Keshav Lal Soni, Ex. Capt. K.C. Arora v. State of Haryana, , T.R. Kapur v. State of Haryana, , P.D. Aggarwal v. State of UP., , Madan Motion Pathak etc. v. Union of India, . In B.S. Yadav's case, , (supra) the question for consideration before this Court was whether Governor could frame rules relating to conditions of service of judicial officers, and if so, then whether such rule contravenes Article 235 of the Constitution? This Court held that a combined reading of Article 309 and Article 235 would lead to the conclusion that though the Legislature or the Governor has the power to make rules regulating the recruitment and the conditions of service of judicial officers of the State and thereby regulate seniority of judicial officers by laying down rules of general applications, but that power cannot be exercised in a manner which will lead to interference with the control vested in the High Court by the first part of Article 235. In paragraph 76 of the judgment the Court examined the amended rule and the retrospective of the same and held that since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provisions. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospectivity effect extends over a long period and no nexus is shown in the present case on behalf of the State Government. On the aforesaid reasonings the Court came to the conclusion that the retrospective effect that was given to the rules is bad in law. In the said case neither this Court examined the question of legislature invalidating a decision of a competent Court of law nor the question whether there has been any instrusion by the legislature into the judicial sphere. We fail to understand how this case is of any assistance to the petitioners in the writ petitions challenging the validity of the Act.
188. In Raman Lal's case (supra) the employees of the Panchayat Services filed a writ petition in Gujarat High Court claiming that they are entitled to the benefit of revision of scales of pay which were made on the basis of the recommendation of the Pay Commission. The State of Gujarat resisted those petitions on the ground that the members of the Panchayat Service were not Government servants and, therefore, they are not entitled to claim the relief asked for. The High Court of Gujarat allowed the writ petition on coming to the conclusion that the members of the Panchayat Service belonging to the local cadre were Government servants and directed the State Government to make suitable orders under Gujarat Panchayat Service (Absorption, Seniority; Pay and Allowance) Rules, 1965 and several other directions to fix the pay scales and allowance and other conditions of service of those employees in par with the State Government servants. The State had filed appeal against the said judgment in the Supreme Court and during the pendency of the appeal an Ordinance was passed which was @ page-SC 3211 later on replaced by the Act. The constitutional validity of the amending Act was challenged by filing the writ petition by the ex-Municipal employees who were included in the local cadre. This Court came to the conclusion that the Panchayat Service constituted under Section 203 of the Gujarat Panchayat's Act is a Civif Service of the State and the members of the service are Government servants. The Court, however, examined the validity of the Amending Act and came to the conclusion that before the Amending Act was passed the employees who had been allocated to the Panchayat Service had achieved the status of Government servants under the provisions of the principal Act of 1961 and that status as Government servant cannot be extinguished so long as the posts are not abolished and their services were not terminated in accordance with the provisions of Article 311 of the Constitution. It is in this context it was observed (Para 52 of AIR) :
"The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a Legislature made law. The Legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and to have conform to the dos and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. 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 and not yesterday's. A legislate cannot Legislature 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".
189. Thus the Amending Act was held to have offended the constitutional provisions of Article 14 and Article 311 and, therefore, was struck down.
190. Thus in Raman Lal the amending Act had the effect of depriving the ex-Municipal employees of their status of membership under the State without any option to them which was considered to be unconstitutional. In the case in hand the impugned Act and its retrospectivity merely alters the seniority within a cadre and such an alteration neither contravenes any constitutional provision nor it affects any right under Part-Ill of the Constitution. In this view of the matter the aforesaid decision is of no assistance to the direct recruit petitioners who have assailed the legality of the Act. In K.C. Arora's case, , the amended provisions being given retrospective effect was found to have affected the accrued fundamental rights of the parties. Following the earlier judgment of this Court in State of Gujarat v. Raman Lal keshav Lal Soni, , this Court held that the Government cannot take away the accrued rights of the petitioners and the appellants, by making amendment to the rules with retrospective effect. In the aforesaid case under the rules in force the seniority had been determined by counting the period of military service. Under the amended rules by giving it retrospective effect the aforesaid benefit had been taken away. This Court, therefore, held that in view of the rules in force and the assurances given by the Government the accrued right of considering the military service towards seniority cannot be retrospectively taken away. In the case in hand no such accrued rights of the direct recruits are being taken away by the Act. On the other hand on account of gross inequitous situation the Legislatures have enacted in Act in consonance with the normal service jurisprudence of determining the seniority on the basis of continuous length of service in a cadre. The aforesaid decision, therefore, cannot be said to be a decision in support of the contention that Legislature have usurped the judicial power nor is it a decision in support of the contention that by the impugned Act any fundamental rights of the direct recruits have been infringed. In the case of, T.R. Kapur v. State of Haryana, , when the validity of Punjab Service of Engineers, Class I, PWD (Irrigation Branch) Rules, 1964 as amended by State of Haryana by notification dated June 22, 1984 came up for consideration this Court found that the said rule is violative of Section 82(6) of @ page-SC 3212 the Punjab Reorganisation Act, 1966, as the prior approval of the Central Government had not been taken. On the question of power of the Governor to frame rules under proviso to Article 309 and to give it retrospective effect the Court held that though the rules can be amended retrospectively but any benefit accrued under existing rule cannot be taken away. In other words a promotion which has already been held in accordance with the rules in force cannot be nullified by the amended rules by fixing an additional qualification for promotion. By the impugned Act the Haryana Legislatures have not purported to nullify any promotion already made under the 1961 Rules which was in force prior to being repealed by the impugned Act. Even Mr. Tulsi, appearing for the State, submitted that no promotion already made under the pre-amended rules will be altered in any manner by giving effect to the provisions of the Act. In this view of the matter, the aforesaid decision is also of no assistance to the direct recruits. In Madan Mohan Pathak v. Union of India, , a seven Judge Bench of this Court considered the question of the power of the Legislature to annul a judgment of the Court giving effect to rights of a party. There has been some observations in the aforesaid case which may support the contention of Mr. Sachar inasmuch as this Court observed that the rights which had passed into those embodied in a judgment and became the basis of a mandamus from the High Court could not be taken away in an indirect fashion. The main plank of Mr. Sachar's argument is that after the judgment of this Court in Sehgal and Chopra interpreting the rules of seniority between the direct recruits and promotees, the direction of this Court to re-draw the seniority list according to the principle laid down by this Court has been taken away by the enactment of the Legislature and thus there has been an in-road of the Legislature into the judicial sphere. But a deeper scrutiny of the decision of this Court in Pathak will not sustain the arguments advanced by Mr. Sachar. In Pathak's case in accordance with Regulation 58 a settlement had been arrived at for payment of bonus to Class III and Class IV employees on 24th of January, 1974 and the said settlement had been approved by the Central Government. Notwithstanding the settlement when the Life Insurance Corporation did not pay bonus, the employees approached the Calcutta High Court. The High Court, therefore, issued a writ of mandamus on 21st of May, 1976 calling upon the Life Insurance Corporation to pay the bonus in accordance with the settlement in question. Against the judgment of the learned single Judge a letters patent appeal was preferred and while the said appeal was pending the Life Insurance Corporation (Modification of Settlement) Act, 1976 came into force on 29th of May, 1976 and Section 3 thereof purported to nullify the judgment of the Calcutta High Court by the non-obstante clause in relation to provisions of Industrial Disputes Act. In other words the Calcutta High Court while issuing mandamus had held the settlement has a binding effect once approved by the Central Government and the same cannot be rescinded. But the impugned Act purported to nullify the rights of the employees working under Class III and Class IV to get annual cash bonus in terms of such settlement. It is in this context in the majority judgment of the Court delivered by Bhagwati, J., it was observed (at pp.817-18 of AIR) :
"that the judgment given by the Calcutta High Court is not merely a declaratory judgment holding an impost or tax to be invalid so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. It is a judgment giving effect to the right of the petitioners to annul cash bonus under the settlement by issuing a writ of mandamus directing the LIC to pay the amount of such bonus. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the LIC. Therefore, in any event, irrespective of, whether the impugned Act is constitutionally valid or not, the LIC is bound to obey the writ of mandamus issued by the Calcutta High Court and pay annual cash bonus for the year April 1, 1975 to March, 31, 1976 to the Class III and Class IV employees".
191. In making the aforesaid observation the Court did not consider the constitutionality of the Act but went by theory that the mandamus issued by the Court calling upon a party to confer certain benefits to the adversary unless annulled by way @ page-SC 3213 of appeal or review has to be obeyed. This principle has no application to the case in hand as the nature of mandamus which has been issued by this Court in Sehgal, and Chopra, (1991 AIR SCW 1028), was merely a declaration of the principles of seniority as per 1961 Rules and the State Government was to draw up the seniority list in accordance with the said rules. The Legislature by enacting the Act and giving it retrospective effect made several vital changes both on the definition of service as well as the criteria for determining the inter se seniority between the direct recruits and promotees. The impugned Act as has been stated earlier has not taken away any accrued rights of the direct recruits, and therefore, the aforesaid observation in Pathak's case really will be of no assistance in deciding the question as to whether the Act purports to have made an in-road into the judicial sphere. The majority judgment came to hold that the impugned Act is violative of Article 31 Clause (2) as the effect of the Act was to transfer ownership debts due owing to Class HI and Class IV employees in respect of annual cash bonus to the Life Insurance Corporation and there has been no provision for payment of any compensation for the compulsory acquisition of these debts. It may be stated that the majority judgment did not consider the question as to whether the Legislatures by enacting the Act have usurped the judicial power and have merely declared the judgment of a competent Court of law to be invalid. Beg., C.J., in his concurring judgment in paragraph 32 of the judgment, however, has observed:
"that the real object of the Act was to set aside the result of the mandamus issued by the Calcutta High Court, though, it does not mention as such, and therefore, the learned Judge held that Section 3 of the Act would be invalid for trenching upon the judicial power".
192. Three other learned Judges, namely; Y.V. Chandrachud, S. Murtaza Fazal Ali and P.N. Shinghal, JJ., agreed with the conclusion of Bhagwati, J., but preferred to rest their decision on the sole ground that the impugned Act violates the provisions of Article 31(2) of the Constitution and in fact they considered it unnecessary to express any opinion on the effect of the judgment of the Calcutta High Court in Writ Petition No.371 of 1976. Thus out of seven learned Judges, six learned Judges rested their decision on the ground that the impugned Act violates Article 31(2) of the Constitution and did not consider the enactment in question to be an act of usurpation of judicial power by the Legislature. The observation of Beg. C.J., in paragraph 32 does not appear to be in consonance with the several authorities of this Court on the point to be discussed hereafter. Thus the aforesaid decision cannot be pressed into service in support of Mr. Sachar's contention. In the aforesaid premises the authorities cited by Mr. Sachar in fact do not support the contention urged by the learned senior Counsel and on the other hand a series of authorities of this Court to be discussed hereafter are directly on the point unequivocally indicating that the power of the Legislature to enact law and giving it retrospective effect which may factually render a decision of a competent Court of law ineffective cannot be whittled down.
193. In, I.N. Saxena v. State of Madhya Pradesh,. , a contention had been raised with regard to the validity of an Act to the effect that the Act has been passed to overrule a decision of this Court which the Legislature has no power to do. In that case the State of Madhya Pradesh had raised age of compulsory retirement for Government servants from 55 years to 58 years but the very Memorandum increasing the age of superannuation also empowered the Government to retire a Government servant after the servant attains the age of 55 years. Thereafter rules under proviso to Article 309 of the Constitution were framed whereby the age of superannuation was raised to 58 years and there was no provision in the rules empowering the Government to retire a Government servant after the age of 55 years. The employee concerned, however, was retired from service on completion of 55 years and the said order on being challenged the Supreme Court held that the appellant will be deemed to have continued in service inspite of the order till he attains the age of 58 years and since the appellant had already attained the age of 58 years it is not possible to direct that he should be put in service. But he will be entitled to such benefits as may accrue now to him by virtue of the success of the writ petition. After the judgment of the Supreme Court an Ordinance was promulgated which later on became an Act of the @ page-SC 3214 State of Madhya Pradesh and the said Act validated the retirement of the Government servants including me appellant Saxena despite the judgment of the Court. The Act was given retrospective effect and it empowered a Government to retire a Government servant on his attaining the age of 55 years and the Amending Act was challenged on the ground that the Legislature has usurped the judicial power. The Court had negatived the said contention and held (Paras 21 and 22 of AIR) :
"The distinction between a "legislative" act and a "judicial" act is well known, though in some specific instances the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the Legislature is a judicial function. In the performance of this function, the Court interprets and gives effect to the intent and mandate of the Legislature as embodied in the statute. On the other hand, it is for the Legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and to require the Court to give effect to that law. While, in view of this distinction between legislative and judicial functions, the Legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray, CJ., in Indira Nehru Gandhi v. Raj Narain, , the rendering ineffective of judgments or orders of competent Courts and 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".
194. In the case of Ms. Utkal Contractors and Joinery (P) Ltd. v. State of Orissa, , a similar contention had been raised but negatived by this Court. In that case the right to collect, sale and purchase of sal seeds had been given to the petitioner and during the subsistence of the contract Orissa Legislature passed an Act called Orissa Forest Produce (Control of Trade) Act 1981. Under the provisions of the said Act the State issued notification on 9-12-1982 which had the effect of rescinding the contract of the petitioner. That order was challenged by filing a writ petition which, however, was dismissed by the Orissa High Court. On an appeal this Court reversed the decision of the Orissa High Court and held that the Act does not apply to sal seeds on Government land. A declaration was made by this Court that the Act and the notification issued under the Act do not apply to the forest produce grown in Government forest and that it was, therefore, open to the Government to treat the contract dated 29th May, 1987 as rescinded. The judgment of this Court is . Thereafter on 29th May 1987 an Ordinance was promulgated, called the Orissa Forest Produce (Control of Trade) (Amendment and Validation) Ordinance, 1987 and it was given retrospective effect as a result of which the earlier decision of this Court became ineffective. The petitioner, therefore, challenged the validity of the same on the ground that the Legislature have encroached upon judicial power and set aside the binding judgment of this Court. Negativing the said contention this Court held (at p.2315 of AIR):-
"The Legislature may, at any time, in exercise of the plenary power conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting valid law. There is no prohibition against retrospective legislation. The power of the Legislature to pass a law postulates the power to pass it prospectively as well as retrospectively. That of course, is subject to the legislative competence and subject to other constitutional limitations. The rendering ineffective of judgments or orders of competent Courts by changing their basis by legislative enactment is a well known pattern of all validating acts. Such, validating legislation which removes the causes of ineffectiveness or invalidity of action or proceedings cannot be considered as encroachment on judicial power. The Legislature, however, cannot by a bare declaration, without more, directly overrule, reverse or set aside any judicial decision".
This case is to a great extent in pari materia with the case in hand where this Court had earlier @ page-SC 3215 interpreted the rules determining the inter se seniority between the direct recruits and promotees and thereafter the Haryana Legislatures have enacted the Act giving it retrospective effect as a result of which earlier decisions of this Court in Sehgal (supra) and Chopra (supra) have become ineffective. In Bhubaneshwar Singh v. Union of India, , a three Judge Bench of this Court held:
"It is well settled that the Parliament and State Legislatures have plenary powers of legislation on the subjects within their field. They can legislate on the said subjects prospectively as well as retrospectively. If the intention of the Legislature is clearly expressed that it purports to introduce the legislation or to amend the existing legislation retrospectively, then subject to the legislative competence and the exercise being not in violation of any of the provisions of the Constitution, such power cannot be questioned".
The Court also further held:-
"that the exercise of rendering ineffective the judgments or orders of competent Courts by changing the very basis by legislation is a well known device of validating legislation and such validating legislation which removes the cause of the invalidity cannot be considered to be an encroachment on judicial power."
195. In rendering the aforesaid decision, this Court relied upon heavily on the Constitution Bench decision of this Court in, Shri P.C. Mills Ltd. V. Broach Borough Municipality, . The Court also relied upon the decisions of this Court in West Ramand Electric Distribution Company Ltd. v. State of Madras, , Udai Ram Sharma v. Union of India, , Krishna Chandra Gangopadhyaya v. Union of India, and Hindustan Gum and Chemicals Ltd. v. State of Haryana, , In Comorin Match Industries (P) Ltd. v State of Tamil Nadu, , the same question again came up for consideration. In this case an assessment order under the Central Sales Tax was set aside on the basis of the decision of Madras High Court in the case of Larsen and Tubro. In Larsen and Tubro certain provisions of the Act were declared ultra vires. In an appeal against the judgment of Madras High Court the Supreme Court held that the provisions of the Central Sales Tax Act which had been declared ultra vires by Madras High Court were validly enacted. The Central Sales Tax Act was amended and the Amending Act was given retrospective effect declaring all assessments made upto 9-1-1969 valid and binding. This was challenged on the ground that it tantamounts to overriding a decision of this Court by Legislatures. Rejecting the said contention this Court held:
"this is not a case of passing a legislation trying to nullify the interpretation of law given in the judgment of a Court of law. This is a case of changing the law itself on the basis of which the judgment was pronounced holding that the assessment orders were erroneous in law".
196. In the case of Indian Aluminium, (1996 AIR SCW 1051) (supra), to which two of us Brother Ramaswamy, J., and Pattanaik, J., were parties a similar contention had been raised after considering a large number of authorities of this Court and explaining the decision in the case of Madan Mohan Pathak v. Union of India, , this Court negatived the contention and held that when the Legislatures enacting the Act has competence over the subject-matter and when the said enactment is consistent with the provisions of Part III of the Constitution and the earlier defects pointed out by the Court have been removed by the Legislatures then the enactment is a valid place of legislation and cannot be struck down by the Court on the ground that it encroaches upon the judicial sphere. A relevant passage from the aforesaid decision has already been quoted in the earlier part of the judgment.
197. In Meerut Development Authority v. Satbir Singh, , on a similar contention being raised this Court negatived the same and held (Para 10 of AIR) :
"It is well settled that when the Supreme Court in exercise of power of judicial review, has declared a particular statute to be invalid, the Legislature has no power to overrule the judgment, however, it has the power to suitably amend the law by use of appropriate phraseology removing the defects pointed out by the Court and by amending the law consistent with the law declared @ page-SC 3216 by the Court so that the defects which were pointed out were never on statute for effective enforcement of the law".
198. A similar view has been expressed by this Court in the case of State of Orissa v. Gopal Chandra Rath, . In view of the aforesaid legal position when the impugned Act is examined the conclusion is irresistible that the said Act cannot be said to be an Act of usurpation of the judicial power by the Haryana Legislature, but on the other hand it is a valid piece of legislation enacted by the State Legislature over which they had legislative competence under Entry 41 of List II of the VIIth Schedule and by giving the enactment retrospective effect the earlier judgments of this Court in Sehgal (supra) and Chopra (supra) have become ineffective. But since this does not tantamount to a mere declaration of invalidity of an earlier judgment and nor does it amount to an encroachment by the Legislature into the judicial sphere the Court will not be justified in holding the same to be invalid. Needless to mention that the impugned Act has neither been challenged on the ground of the lack of legislative competence nor has it been established to have contravened any provisions of Part III of the Constitution. Consequently Mr. Sachar 's contention has to be rejected and the Act has to be declared intra vires. Necessarily, therefore the seniority list drawn up on different dates in accordance with the earlier Rules of 1961 will have to be annulled and fresh seniority list has to be drawn up in accordance with the provisions of the Act since the Act has been given retrospective effect with effect from 1-11-1966. It may, however, be reiterated that any promotion already made on the basis of the seniority list drawn up in accordance with the Recruitment Rules of 1961 will not be altered in any manner.
51. This aspect of the matter has been considered recently by the Apex Court in Gujarat Agricultural University v. Rathod Labhu Bechar, 2001 AIR SCW 351, in the following terms:
From the aforesaid, it emerges that the learned single Judge had concurred with the finding of the Tribunal that contesting workmen have been working in the appellant University regularly for a long number of years. The existence of permanent nature of work was inferred on this account and also due to the vastness of appellant establishment. The regularisation is claimed only in respect of Class IV employees. The main objection, which was raised earlier and is raised before us is that a person could only be regularised on any vacant post and if there be one he should be qualified for the same as per qualification, if any, prescribed. In fact, the Tribunal; has held on the date of the award, most of the workmen had completed 10 years of their service, It is also well settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financially gain as against employees legitimate claim, has been held by the Court repeatedly as an unfair labour practice. In fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with sword of Damocles hanging over their heads or to continue with favoured one in the cases of ad hoc employee with staling competent and legitimate claimants. Thus we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them. Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, there work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily rate workers. In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is caste to assess the quantum of such work and create such equivalent post for their absorption.
The decision to absorb some of the employees at one point of time or in a phased manner depends on facts and circumstances of each case. Where very large number of workers are required to be absorbed, this Court accepted the formula, in the past to absorb such employees under a Scheme in a phased manner. This is done to work it out within its financial means. Every liberty and entitlement is always subject to such financial limits. But in considering such absorption, the financial means have to be stretched to the maximum but should not be a defence with motive to disentitle the claim of the workmen. The grant of this phased absorption thus is in itself a mechanism under this principle. But as we have said this mechanism is not a tool to misuse for taking away any legitimate right of any worker. The Court has to be cautious in exercising its discretion. On the one hand it has to keep the interest of the workers alive and on the other to see that employer does not become spineless for the lack of funds eroding the very workers interest. In the present case admittedly in the first phase in terms of clause I, one block of daily wage worker is to be regularised for which the posts are being created. We want to make it clear, in creating posts Government shall see maximum posts are created to absorb maximum such workers who have completed ten years as on 31st December, 2000 as these workers have more than eligible claim. Thereafter, even reassessment for additional posts, about which we are referring should be done in the same perspective. In other word there may still be number of workers who may still not be covered for absorption under the first phase of clause I due to initial nonavailability of posts though working for a long number of years. We are saying so because clause 1 (d) is silent, what number of posts Government is being created initially for the first phase of absorption. The said decision has no bearing in the fact of the present case.
52. Yet again in Indra Sawhney v. Union of India, , whereupon Mr. Sharma, the learned Counsel appearing on behalf of the respondents has placed reliance the Apex Court held:
The question of validation arises in the context of Section 6 of the Act. It is true that whenever legislative or executive action is declared as being violative of the provisions of Part III of the Constitution, it will be permissible for the executive or the Legislature to remove the defect which is the cause for discrimination prospectively and which defect has been pointed out by the Court. The defect can be removed retrospectively too by legislative action and the previous actions can also be validated. But where there is a mere validation with retrospective effect, without the defect being legislatively removed with retrospective effect, the legislative action will amount to overruling the judgment of the Courts by way of legislative fiat and will be invalid as being contrary to the doctrine of separation of powers.
53. The learned single Judge, in our opinion, was not correct in proceeding with the pre-supposition that by reason of G.O. Ms. No.212, dated 27-11-1993 any right has been vested upon an employee who had completed five years of service.
54. The entire basis whereupon the judgment of the learned single Judge is based is, therefore, erroneous. As indicated hereinbefore having regard to the mode of appointment the requirements thereof, absence of sanctioned posts, non-observance of the statutory rules the part-time employees, ad hoc employees and NMRs did not derive any legal right whatsoever to continue in service. In fact, save and except the right conferred upon them to be considered for regularisation by reason of G.O. Ms. No.212, they did not have any other legal right whatsoever. It is now well settled principle that by reason of a catena of decisions of the High Court as also of the Supreme Court of India a prolonged service would not ripen into permanence nor by reason thereof the status of employee can be changed.
55. It is also not a case where an individual decision inter-party had been sought to be taken away by reason of the said amending Act in terms whereof their rights and liabilities alone were affected. The interpretation of a policy decision is a judgment in rem and by reason thereof, no inter-party rights had been conferred or adjudicated upon.
56. The validation Act or for that purpose any amending Act does not offend the doctrine of separation of powers. It is also trite that that the Court in exercise of its jurisdiction under Article 226 of the Constitution while exercising its power of judicial review over legislation would not invalidate an act on the ground of malice or otherwise. Such an approach, in our opinion, is wholly unwarranted inasmuch as the question as to whether the statute suffers from the vice of fraud on legislation or not must be kept confined to the legislative competence and not otherwise. Right to employment is not a fundamental right or a constitutional right. In terms of Articles 14 and 16 of the Constitution the right of a citizen is confined only to consideration therefore. Thus it would be incorrect to contend that the same would be a right of property.
57. While interpreting a statute the Court may have the occasion to consider the same having regard to the doctrine of social justice but such consideration must be kept confined only to a case where the legislative intent is not clear or is ambiguous. Once a plain reading of a statute makes the legislative intention clear and unambiguous, the question of attributing any other meaning upon taking recourse to the doctrine of beneficial legislation or social justice would not arise at all.
58. The wisdom of the Legislature in making an enactment can again be not a subject-matter which would come in the realm of the Court's power of judicial review under Article 226 of the Constitution. A statute when validly enacted must be given effect to subject to the constitutional limitations of the Legislature, Once it is held that the Act is not violative of any provisions of Part III of the Constitution or any other constitutional provisions the Court must restrict its enquiry.
59. It is not correct to contend that the financial health of a State, in such matters would not be a relevant consideration. It is one thing to say that irrespective of any financial shortage the State or any other employer must strictly comply with the provisions of the relevant statute but it is another thing to say that having regard to the financial implication the State while legislating a statute may not extend a benefit to the citizenly however desirable it may be.
60. In Chief Conservator of Forests v. J.M. Kondhare, (SC) 1996 (1) SLR 56, the Apex Court has held:
Insofar as the financial strain on State Exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forest Department itself the casual employees are about 1.4 lakhs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood of Rs.300 crores - a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or interrorem. We have neither been impressed by the first nor frightened by the second inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all casual labourers of the Forests Department or any other Department of the Government.
61. At this juncture we may also take into consideration another aspect of the matter. The learned single Judge has issued a writ of or in the nature of mandamus directing the respondents to create posts. It is now well settled principle of law that in exercise of its jurisdiction under Article 226 of the Constitution the Courts cannot direct creation of posts in public service. Although the decisions on this point are galore, reference may be made to the Commissioner, Corporation of Madras v. Madras Corporation Teachers' Mandram and others, , State offf.P,, Through the Secretary (Rural Development) to the Govt. of Himachal Pradesh, Shimla v. Ashwani Kumar and others, AIR 1997 SC 352 and AIR 1977 SC 1445 para 4. Yet again in Piara Singh's case (supra) the Apex Court held :
Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate Legislature. This power to prescribe tile conditions of service can be exercised either, by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.
62. Ordinarily the Court does not usurp the functions of the State. It at the first instant directs the State to consider the case. It was not for the Court but for the State to say as to whether as for example, there exist clear vacancies or not. In absence of any clear vacancy no person could have been directed to be regularised. In State of W.B. and others v. Nuruddin Mallick andothers, , the Apex Court observed:
..... The Courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter.
63. The next question which may arise for consideration would be as to whether the cut off date 25-11-1993 is so arbitrary as to attract the wrath of Article 14 of the Constitution.
64. Fixing a cut-off date is normally not arbitrary unless it can be said to be case where such a date has been fixed arbitrarily or capriciously and no reason exists therefor.
65. After the decision of the Apex Court in Piara Singh 's case (supra) the State had appointed a Committee. The Committee had gone into the matter and made certain recommendation including fixation of cut-off date. Such a cut off date was fixed keeping in view the coming into force of such policy decision. In Sushma Sharma v. State of Rajasthan, , the Apex Court has held:
It may be borne in mind that wisdom or lack of wisdom in the action of the Government or Legislature is not justiciable by Court. See in this connection the observations of the U.S. Supreme Court in the case of Metropolis Theatre Company v. City of Chicago and Ernest, J., Magerstadt, (1912) 57 I Ed 730). To find fault with a law is not to demonstrate its invalidity. There the learned Judge Mr. Justice Mc Kenna observed as follows:
"It may seem unjust and oppressive, yet be free from judicial interference. The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void.
This passage has been quoted with approval by Chief Justice Chandrachud in Prag Ice & Oil Mills v. Union of India, .
66. Yet again in the matter of Cauvery Water Disputes Tribunal, , the Apex Court clearly held:
To the extent that the Ordinance interferes with the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made but being also in conflict with the judicial power of the State.
67. There is another aspect of the matter which we may not lose sight of. In terms of Act 2 of 1994 a complete ban had been imposed in making recruitment of NMR, part-time or ad hoc employees. Thus on and from 25-11-1993 nobody had been employed nor could be employed. Any such appointment would ex facie violate the provisions of the said Act 2 of 1994 which not only contains a penal provision but also imposed statutory liability upon the officers to pay and unto the State all such salaries and emoluments paid to such employees. Even a ban had been imposed on the treasuries to honour such bills.
68. Act 27 of 1998 has come into force on 19-8-1998. Thus the ban which now would be imposed, as regards grant of regularisation will be effective from that date. Can it be said that five years continuous service as on 13-8-1998 is a condition which is wholly arbitrary and irrational so as to attract Articles 14 and 246 of the Constitution. The answer to the aforementioned question must be rendered in negative. It will bear repetition to state that by reason of O.O. Ms. No.212 no workman derives any vested right to be appointed as such. But the employees who fulfil the criteria were entitled to be only considered therefor. Regularisation of service in terms of aforementioned G.O. Ms. No.212 is dependant upon fulfilment of the condition enumerated therein. As is evident from the decision of the Apex Court in M.L. Singh's case (supra) a distinction must be borne in mind between a vested right and a right to be considered inasmuch as the requirement of a clear vacancy has a direct nexus therewith. Even if there were clear vacancies, such vacancies were required to be filled up having regard to the reservation policy of the State.
69. As to what would a clear vacancy, an argument had sought to be advanced on the basis of Rule 4 of the A.P. State and Subordinate Service Rules, 1996. Explanation appended to Rule 4 whereupon reliance has been placed reads thus:
Explanation :--(i) For the purpose of this rule, notwithstanding anything contained in these rules or special or ad hoc rules, substantive vacancies shall mean all vacancies in the permanent cadre and all vacancies in the posts which have been in existence for more than 5 years.
(ii) The posts earmarked for direct recruitment in the Special Rules/AD hoc Rules shall be filled by direct recruits strictly and not by any other method.
(iii) In respect of posts in the State and Subordinate Service the percentage earmarked for direct recruitment should not fall short of 30%.
(iv) If the special rules specify more than one method of appointment, a provision shall be made in the special rules indicating the cycle or order in which vacancies shall be filled by such different methods of appointments.
70. The said explanation is not a substantive enactment. It refers to Rule 4 which provides for the mode of appointment - by way of direct recruitment, recruitment/ appointment by transfer, promotion or contract/agreement/re-employment.
71. Which posts can be filled up, had been dealt with in Rule 4. The explanation appended to Rule 4, is directly relatable to Rule 4(b) by reason whereof, only a restriction has been placed in making appointment. By reason of such explanation, an extended meaning cannot be given.
72. Further more, G.O. Ms. No.212 has nothing to do with the provisions of the A.P. State and Subordinate Service Rules, 1996, the said policy decision was independent of the said rules.
73. It was, therefore, for filling up of the posts under G.O. Ms. No.212, for the State to find out whether any clear vacancies exist or not.
74. With utmost respect to the learned single Judge, in our considered opinion, he was not correct in arriving at the conclusion that the debates before the Assembly were required to be looked into. It is not within the province of this Court to refer to such debates. While interpreting the provisions of an Act the intention behind such legislation is non-justiciable.
75. For the purpose of enactment it is not a constitutional requirement that a bill must be referred to a Select Committee nor the Court can draw any assumption that the vital information as regards the reasons for such enactment were withheld from the members of the Legislature. Yet again, non-application of mind, although may be a good ground for striking out an administration action, the same is not at all a ground for invalidating a legislation. The learned single Judge has referred to a decision of the Supreme Court of the United States of America in Magraine v. Dagarthi, 273 US 135. The said American decision in this regard is not at all relevant in the Indian context inasmuch as, as indicated hereinbefore except on the ground of fraud on Constitution. Colourable exercise or violation of the constitutional provisions are only grounds to invalidate a legislation. In T. Venkata Reddy v. State of A.P., , the Apex Court has clearly held:
.....While the Courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the Legislature in passing a statute is beyond the scrutiny of Courts. Nor can the Courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expedience and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the Court.
76. For the aforesaid reasons, the impugned judgments cannot be sustained which are set aside accordingly.