Rajasthan High Court - Jodhpur
Balwant Singh vs . State Of Raj. & Ors. on 30 April, 2015
Author: Govind Mathur
Bench: Govind Mathur
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Balwant Singh vs. State of Raj. & ors.
D.B. Civil Writ Petition No.
6087/2008 under Article 226 of the
Constitution of India.
Date of Judgment : 30.4.2015
PRESENT
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MISS JUSTICE JAISHREE THAKUR.
Mr. Sunil Beniwal, for the petitioner.
Mr. P.S. Bhati, Addl. Advocate General.
Mr. L.R. Bishnoi, Deputy Government Counsel.
BY THE COURT:(Per Hon'ble Ms. Jaishree Thakur,J.)
1. The present petition has been filed to challenge the Notification dated 6.10.2008 issued by the Governor of Rajasthan in exercise of powers conferred by the proviso to Article 309 of the Constitution of India which amends the Rajasthan Animal Husbandry Subordinate Service Rules, 1977 ('for short 'the Rules of 1977') with retrospective effect.
2. The petitioner was appointed as Class IV Employee with the Department of Animal Husbandry vide order dated 21.3.1970. In the year 1990-91, he underwent regular training for Livestock Assistant at Animal Husbandry School, Kota and thereafter, vide order dated 15.6.1996, he was promoted as Laboratory Attendant in the Pay Scale of 2 Rs. 775-1025.
3. The grievance of the petitioner is that though he had an avenue for promotion to the post of Livestock Assistant while having requisite eligibility, he was not promoted. As per the Rules of 1977, 25% of the total posts of Livestock Assistant are required to be filled by way of promotion from among the Dresser and Laboratory Attendant who have nine months' training of Stock-man/Compounder and have also passed the 8th standard examination, subject to having five years' experience. The petitioner despite possessing the qualification/experience to be considered for the post of Livestock Assistant, was not promoted to the said post. He made several representations to the authorities to consider him for promotion to the post of Livestock Assistant but to no avail. Thereafter the respondent-Department decided to fill the 25% quota of promotion provided under the Rules by making fresh appointment to the post in question instead of filling the same from candidates available from the Department itself. Aggrieved against such action, the petitioner filed the present writ petition.
4. The respondents filed a reply therein taking a plea that no promotion avenue is available to the petitioner for promotion to the post of Livestock Assistant as by a Notification dated 10.10.2008, while exercising powers conferred by the proviso to Article 309 of the Constitution of India, an amendment was introduced in the Rules of 1977 3 with effect from 1.4.2001, consequent to which the appointment to the post of Livestock Assistant is required to be made 100% by way of direct recruitment, out of which 10% post are reserved for in service candidates who are having five years' experience of regular service on the post of Livestock Attendant along with educational qualification as prescribed in the schedule. It is contended that in view of amendment introduced under the Notification dated 10.10.2008, the petitioner is required to face regular selection against the 10% reserved posts for in service candidates.
5. We have heard the counsel for the parties and perused the record of the case. The question that requires consideration is whether the right available to the petitioner for promotion under the Rules of 1977 could have been taken away by retrospective application of the amended provision by the notification dated 10.10.2008.
6. The post of Livestock Assistant prior to the amendment was as under:-
"9.Live Stock Assistant 25% by promo- Secondary or its Dresser and VIII passed with 9 Enumerator/Milk tion and 75% equivalent in Science Laboratory months' Training Recorder and by direct with Biology as Sub- A ttendant of Compounder Laboratory recruitment ject and 9 months and Stockman Asstt./ Grace-III Training of Stock- alongwith 5 years' man/Compounder Experience on posts mentioned in Column 5.
7. In view of the provisions aforesaid, the petitioner possessed the requisite eligibility and had an avenue for promotion to the post of Livestock Assistant by having experience of five years' on the post of Livestock Attendant, and also being a person 8th Class Pass with nine months' 4 training as a stockman. The promotion avenue available to the petitioner were taken away after the introduction of amendment in the Schedule appended with the Rules of 1977 under the Notification dated 10.10.2008, w.e.f. 01.4.2001. The amended entry in the Schedule reads as follows:-
3. Livestock Assistant 100% by direct Senior Secondary with recruitment out Physics, Chemistry and of which 10% Biology or Horticulture shall be reserved (Agriculture), Animal for in service Husbandry and Biology candidates with from the Board of Secondary 5 years experience Education, Rajasthan or its of regular service equivalent and one year/ on the post of two years Training of Livestock Livestock Assistant from an Attendant Institution recognised by the Govt. of Rajasthan."
8. It has been argued by the counsel for the petitioner that a valuable right had accrued to the petitioner to be considered for the post of Livestock Assistant after he had completed his regular training and was promoted as Laboratory Attendant on 15.6.1996.
9. Per contra Mr. P.S. Bhati counsel for the respondent has urged that Government has the power to amend rules retrospectively and such rules are quite valid and under the amended rules, the petitioner was not eligible for promotion.
10. The question whether the right accrued to the petitioner and others like him, for promotion under the Rules of 1977 could have been taken away by retrospective application of the amended rules by the impugned notification is no longer res integra.
11. It has been held by the Hon'ble Supreme Court in State of Gujarat vs. Raman Lal Keshav Lal Soni, 1983 5 Lab. I.C. 391 while examining a similar eventuality held as under:-
"Now, in 1978 before the Amending Act was passed, thanks to the provisions of the Principal Act of 1961, the ex- municipal employees who had been allocated to the Panchayat Service as Secretaries, officers and servants of Gram and Nagar Panchayats, had achieved the status of government servants. Their status as Government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Art. 311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Art. 14 of the Constitution. An attempt was made to justify the purported differentiation on the basis of history and ancestry, as it were. It was said that Talatis and Kotwals who became Secretaries, officers and servants of Gram and Nagar Panchayats were Government servants, even to start with, while municipal employees who became such secretaries, officers and servants of Gram and Nagar Panchayats were not. Each carried the mark or the 'brand' of his origin and a classification on the basis of the source from which they came into the service, it was claimed, was permissible. We are clear that it is not. Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a clarification would be 6 unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Art. 311 and Art. 14 that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile municipal employees never became members of a service under the State. Can a law be made to be destroy today's accrued constitutional rights by artificially reverting to a situation which existed seventeen years ago? No. 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 have to conform to the do's 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, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course 7 of the twenty years. That would be most arbitrary, unreasonable and a negation of history. Today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats third Amendment) Act, 1978 is unconstitutional, as it offends Arts. 311 and 14 and is arbitrary and unreasonable."
12. In R.S. Ajara and ors. v. State of Gujarat and ors. (1997) 3 SCC 641 and in Ex.Capt. K.C. Arora and anr. v. State of Haryana and ors. AIR 1987 SC 1848) also it was held by the Hon'ble Apex Court that a benefit that has accrued under the existing rules cannot be taken away by an amendment with retrospective effect and no statutory rule or administrative order can whittle down or destroy any right which has become crystallized and no rule can be framed under the proviso to Article 309 of the Constitution which affects or impairs the vested rights.
13. Undoubtedly the Government has got the power under 8 proviso to Article 309 of Constitution to make rules and amend the rules giving retrospective effect. Nevertheless, such retrospective amendments cannot take away the vested rights and the amendments must be reasonable, not arbitrary or discriminatory violating Articles 14 and 16 of the Constitution.The plea taken by the counsel appearing for the respondents that the petitioner would not be entitled to be considered for promotion to the post of Livestock Assistant since the Rules have been amended in the year 2008 and have been held to have come into effect from the year 2001, the amended provisions of the Rules would apply is not tenable.
14. The Hon'ble Supreme Court in the matter of Nirmal Chandra Bhattachrjee & Ors. vs. Union of India & Ors. reported 1991 Supp. 2 SCC 363 held as under:-
"No rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other".
15. The Apex Court further went on to hold that if the delay in promotion takes place at the instance of the employer, an employee cannot be made to suffer on account of intervening events. In normal course, all vacancies that arose till 2008 would have been filled up 9 under the unamended Rules of 1977 and in case those vacancies were not notified or filled up on account of the delay by the State itself, the petitioner cannot be penalized for the same.
16. It is also contended by the counsel for the petitioner that an advertisement had been issued in the year 2011 inviting applications for recruitment to the post of Livestock Assistant and the process of selection had since been completed. No doubt, a Notification has been issued in the year 2008 made effective retrospectively from the year 2001 that promotions to the post of Livestock Assistant would be 100% by direct recruitment, out of which 10% shall be reserved for in service candidates with five years' experience on regular service on the post of Livestock Assistant with Senior Secondary with Physical, Chemistry and Biology or Horticulture(Agriculture), Animal Husbandry and Biology from the Board of Secondary Education, Rajasthan or its equivalent and one year/two years Training of Livestock Assistant from the institution recognized by the Government of Rajasthan. However the petitioner was having necessary qualifications of being 8th Class pass with five year's experience on the post of Livestock Attendant under the unamended Rules of 1977 which would have entitled him to be considered for promotion when the vacancies arose prior to 2008. The amendment took away a right which had vested in him to be considered for 10 promotion.
17. The principle laid down in the aforesaid case of Nirmal Chandra Bhattachrjee & Ors. vs. Union of India & Ors. aptly fits into the facts and circumstances of this case as the subsequent amendment of 2008 regarding qualification of filing post of Livestock Assistants by 100% direct recruitment with change in qualification can not apply in the case of petitioner who was already eligible to be promoted against the quota of 25% posts by promotion after completion of five years of service as Livestock Attendant in terms of the Rules of 1977. The vacancies that arose in the year 2001-2008 are to be filled up as per the un-amended rules. Reliance can be placed upon a decision of the Hon'ble Supreme court in case of B.L. Gupta & Anr. vs. M.C.D. reported in (1998) 9 SCC 223 wherein it was held that any vacancy which arose prior to amendment were to be filled up according to rules prevailing at that time. Thus in the present case to the vacancies that arose prior to the amendment of rules of notification dated 10.10.2008 are to be filled up by the un- amended Rules of 1977.
18. Therefore , we are of the opinion that a substantive right had accrued to the petitioner to be considered for promotion against the vacancies that arose upto 2008 and following the law as laid down by the aforesaid judgments, the retrospective application of the amended Schedule 3 11 pertaining to Livestock Assistant cannot be sustained. We, therefore, declare that the amended Schedule which is applicable retrospectively is unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution of India and the rest of the Notification may be treated as prospective in nature.
19. We direct the respondents to consider the case of petitioner for promotion to the post of Livestock Assistant against vacancies which arose in the year prior to the amendment as per the unamended Rules of 1977.
20. The writ petition stands allowed with no order as to costs.
(JAISHREE THAKUR),J (GOVIND MATHUR),J.
mlt