Karnataka High Court
K.T. Nagaraj And Anr. vs The Bangalore Mahanagara Palike And ... on 16 April, 2003
Equivalent citations: 2003(4)KARLJ306, 2003 LAB. I. C. 3048, 2003 AIR - KANT. H. C. R. 1985 (2003) 4 KANT LJ 306, (2003) 4 KANT LJ 306
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
ORDER N.K. Jain, C.J.
1. One B.V. Satish has filed Writ Petition No. 45082 of 1999 stating that he was appointed as Assistant Engineer on 6-8-1983 in the 2nd respondent-Bangalore City Corporation (hereinafter called as the 'Corporation') on a consolidated pay of Rs. 910A per month and regularised on 14-5-1990. The Government framed regulations called the City of Bangalore Municipal Corporation Services (General) Cadre and Recruitment Regulations ('C and R Regulations' for short), providing for method of recruitment and qualifications for several categories of posts on the establishment of the Corporation, vide order Annexure-A. According to the C and R Regulations, the recruitment to the post of Junior Engineer (now called as Assistant Engineer) is 25% by direct recruitment and 75% by deputation from the Government service, and the recruitment to the post of Supervisor (now called as Junior Engineer) is 50% by direct recruitment and 50% by promotion of Maistries, Work Inspectors etc. The qualifications prescribed for direct recruitment to the above two posts is B.E. degree in Civil or Mechanical Engineering or equivalent qualification and Diploma in Civil or Mechanical Engineering or equivalent qualification, respectively. A provisional seniority list of Assistant Engineers was published on 16-12-1993 inviting the objections. The name of the petitioner B.V. Satish was shown at Sl. No. 13 and other persons, who are diploma holders and were initially appointed as Junior Engineers and subsequently transferred as Assistant Engineers from the date of their acquiring B.E. degree qualification, were placed at Sl. Nos. 1 to 12. Objections to the said list were filed by the petitioner. As no action was taken, the petitioner has filed Writ Petition No. 25632 of 1994 before this Court, which is pending consideration. On 7-1-1997, the Corporation prepared filial seniority list in the cadre of Assistant Engineers as on 31-12-1995 preceded by a provisional seniority list published under official memorandum dated 5-1-1996 and in the final seniority list, the petitioner was shown at Sl. No. 1. Again a provisional seniority list in the cadre of Assistant Engineers was published by the Corporation by its official memorandum dated 1-8-1998, and objections were invited. The petitioner's name was shown at Sl. No. 6. The petitioner filed objections against the said provisional list. However, in the final seniority list dated 10-9-1998, the name of the petitioner was shown at Sl. No. 11. The petitioner has challenged the same by filing Writ Petition No. 29555 of 1998, which is pending consideration. It is also stated that the Government while exercising its powers under Sections 91 and 421 of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act'), issued a notification dated 27-9-1999 amending C and R Regulations with retrospective effect from 25-11-1986 (Annexure-E). The same is challenged in this writ petition.
2. One K.T. Nagaraj and N. Vijayakumar have filed Writ Petition Nos. 45080 and 45081 of 1999 respectively on the same grounds. It is stated that the petitioners are Engineering graduates and were appointed on daily wages basis in the Engineering Department of the Bangalore Mahanagara Palike in the year 1985 and they were qualified for being appointed as Assistant Engineer in the year 1985 itself and their services were regularised on 23-12-1988 and 26-10-1991 respectively. They have stated that Writ Petition Nos. 3418 to 3421 of 1997 and 29148 and 29149 of 1998 are pending consideration wherein the petitioners have questioned the seniority assigned to them and have sought for the same reliefs as in the present writ petitions.
3. One B.T. Mohan Krishna has filed Writ Petition No. 45443 of 1999. It is stated that he is Engineering graduate appointed as Assistant Engineer in the Corporation, his services were regularised in 1992 and his probation has been declared as on 18-12-1995. It is stated that he has also filed Writ Petition No. 29371 of 1998 regarding seniority assigned to him, which is pending consideration.
4. The main argument in all three writ petitions is that the methodology adopted by the said amendment to the effect that once a Junior Engineer acquires a degree qualification, he is deemed to have become Assistant Engineer, the counting of 1/3rd of service is bad and the retrospective effect given to this amendment makes unequals as equals. It is also contended that proper publicity was not given for the draft rules regarding the draft amendment and that giving weightage for services in the cadre of Assistant Engineers and automatic transfer to the post of Executive Engineer is not sustainable. Therefore, the said amendment is violative of Articles 14 and 16 of the Constitution.
5. The writ petitions were resisted by the respondents contending that the decision in K. Narayanan v. State of Karnataka, is not applicable to the facts of the present case. It is submitted that the Corporation adopted the amendment introduced by the Public Works Engineering Department (Cadre and Recruitment) Rules, 1986, by resolution dated 25-11-1986, and thereafter, the said resolution has been given effect to and Junior Engineers have been transferred and they have worked as Assistant Engineers and as the Junior Engineers have been appointed on transfer on acquisition of degree, as Assistant Engineers from 1986 itself and the weightage given to them for their services as Junior Engineers as the work that was carried on by them and that done by the Assistant Engineers are similar, the decision in K. Narayanan's case, supra, is not applicable. It is submitted that in view of the provisions of Sections 91 and 421 of the Act the impugned notification has been issued giving retrospective effect, and in the absence of any violation of fundamental rights, they are not entitled to any relief.
6. Learned Government Advocate also submits that the amendment of the C and R Regulations was necessitated as the Corporation had already passed a resolution on 25-11-1986 and by exercising the power under Sections 91 and 421 of the Act, amendment to C and R Regulations is made. It is submitted that the petitioner never objected to the draft amendment at that point of time. It is also submitted that since the resolution was given effect to, the Junior Engineers on acquiring Engineering degree were transferred as Assistant Engineers from the date of acquiring degree, the action taken by the Corporation has to be validated by amending the rule, which is perfectly legal and the same does not violate any of the fundamental rights of the petitioners. The learned Counsel appearing for the Corporation, Sri Ashok Harnahalli has reiterated the arguments of Government Advocate and submitted that rule has been amended to validate action already taken pursuant to resolution dated 25-11-1986 which has already been implemented and having regard to this fact, K. Narayanan's case, supra, is not helpful to the petitioners.
7. Learned Counsel appearing for the impleading respondents reiterated the arguments and submits that the Junior Engineers have worked as Assistant Engineers since long and their nature of job that has been carried out as Assistant Engineers and that of Junior Engineers are same and since 1986 they have been working and the rule has been amended only to validate the action taken by the Corporation, and therefore, the petitioners are not entitled to any relief.
8. In rejoinder, Sri Ram Kumar and Sri Rajagopal, learned Counsels for the petitioners submit that sufficient publicity was not given for the draft amendment nor was it placed before both the houses of the State Legislature. It is also submitted by the learned Counsel Sri Ram Kumar that though the petitioners in their individual capacity have filed the petitions questioning the seniority assigned to them. Learned Counsel submits that in case this Court declares the amendment as ultra vires, in view of the decision in K. Narayanan's case, it will not be necessary to decide those writ petitions challenging' the seniority issue.
9. We have heard the learned Counsels for the parties and perused the material placed on record and the decisions relied upon.
10. The State Legislature can make laws. Generally, laws are made with prospective effect, but the Legislature has the plenary power to pass them retrospectively. No doubt, retrospective amendment or change will affect vested right, but the power can only be challenged if retrospective law is violative of Article 14 or any other fundamental right conferred in the Constitution. It is to be seen whether the amendment which relates to providing for transfer of Junior Engineers to the higher cadre of Assistant Engineers and further insofar as it relates to retrospective operation of amended rule from 25-11-1986 is hit by Article 14 as contended by petitioners in this case. The other argument is that while giving weightage to them for their services as Assistant Engineers by notification dated 27-9-1999, giving effect from 25-11-1986 is void. The main contention of Sri Ravivarma Kumar, learned Counsel for the appellants is that the rule is liable to be set aside and can be declared as ultra, vires in view of the decision in K. Narayanan's case, supra, wherein their Lordships considering identical issues pertaining to Public Works Department, observed that there was no nexus between framing a rule permitting appointment on transfer and making it effective retrospectively from 1976. It was also found that the impugned rule having been framed in 1985 permitting appointment by transfer and making it operative from 1976, results in entry of Diploma holders as Assistant Engineers only because they became qualified as against those who entered in the service before or after 1976 by competitive process. It was also observed that Government may appoint all the Junior Engineers en bloc after framing of the rule and place them below all those who were working as Assistant Engineers on that date but they cannot be so appointed as to get precedence over those who were working before them. That would result in artificially making unequals as equals. Under the circumstances, the rule which contemplates that once a Junior Engineer acquires a degree qualification, then he automatically should be deemed to have become an Assistant Engineer with retrospective effect, has been set aside. The amended Rule of 1985 making it operative from 1st January, 1976, is struck down as ultra vires by the Apex Court with a direction to make a fresh graduation in the light of the observation. Therefore, this rule is liable to be struck down.
11. Considering the points in issue and the facts of the given case, as per settled law, a reading of Section 421 of the Municipal Corporations Act reveals that it provides that it is open to the Corporation to amend C and R Regulations with retrospective effect on certain conditions.
12. Once the Corporation has power, what is to be seen in the facts of the given case is that it should not be exercised in violation of Article 14 of the Constitution.
13. From the material placed on record, it is seen that prior to giving effect to the rule made in 1986 and as per the earlier Act and 1971 Rules, that were prevailing and as stated, the Junior Engineers who acquired degree in Engineering have been working as Assistant Engineers after 25-11-1986 in pursuance of the resolution and it was found that working of such officers was not strictly in accordance with law. The Corporation moved for amending (C and R) Regulations in exercise of power under Sections 91 and 421 of the Municipal Corporations Act, in view of the provision of Section 421 which enables the Government to allow the Corporation to amend the rules with retrospective effect. Under the circumstances, it cannot be said it is violative of Article 14. So far as K. Narayanan's case is concerned, as it has been laid down in that case that the rules operate prospectively and retrospectivity is an exception, even where the statute permits framing of the rule with retrospective effect, the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right of a party. It was also held that the rule making authority should not be permitted normally to act in the past. It is also seen from K. Narayanan's case, that the fact situation therein was different. There, in Public Works Department matters, the notification dated 2-9-1993 was given effect to from 1976, and in that case they were not working in the higher cadre and under the circumstances, in the opinion of their Lordships, the retrospective operation of the rule with effect from 1st January, 1976 was discriminatory and violative of Articles 14 and 16 and they struck down the rule as ultra vires, whereas, in the instant case, the Junior Engineers, who acquired the degree, were given weightage and transferred and are working since 1985, as per the resolution, which was adopted on 25-11-1986. The rule has been amended only to validate the action taken by the Corporation. Admittedly, they have adopted the system and working on that since long, therefore, the question of infringement of vested right, does not arise. In view of that, the learned Counsels for the petitioners cannot take advantage of the observation in K. Narayanan's case and the same is not helpful. That apart, the learned Counsels for the petitioners has not been able to plead any mala fides. In the absence of any mala fides pleaded or shown, it cannot be said that Government has exercised its power and issued amendment with arbitrariness or mala fide intention so as to call for any interference by this Court.
14. So far as the argument that no statutory rule can change the cadre is concerned, no doubt, if there is no statutory rule, then the cadre cannot be changed, but, as stated, once Rules are framed with the legislative competence and after acquiring qualification and giving weightage, the Junior Engineers were posted as Assistant Engineers and were working on the basis of the resolution dated 25-11-1986 and in the circumstances giving retrospective effect to rules, as stated, the argument is not available and on that basis, the amendment notification cannot be declared ultra vires.
15. Admittedly, the rules have come into force and have been given effect to. As stated above, it cannot be said that the amendment notification is contrary to the existing rules nor there is any reason to hold the amended notification dated 27-9-1999 to be discriminatory in the facts of the given case so as to be hit by Articles 14 and 16 of the Constitution.
16. The argument of the learned Counsels for the petitioners is that the Corporation erred in giving weightage. The argument regarding the weightage given to the Junior Engineers under for the service rendered as Junior Engineers, a similar provision which is contained in the Karnataka Public Works Engineering Department Rules, has been upheld by the Supreme Court in Devi Prasad and Ors. v. Government of Andhra Pradesh and Ors., wherein the Andhra Pradesh Engineering Subordinate Service Rules, Note (2) (framed by G.O.Ms. No. 833) was challenged and their Lordships, while considering the validity of the special weightage or benefit given by the rule to supervisors, held that the same is neither arbitrary nor violative of Article 14 of the Constitution and observed as follows:
"Ultimately, it is a matter of Government policy to decide what weightage should be given as between two categories of Government servants rendering somewhat similar kind of service. Mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal".
The same has been followed and reference has been made to it in K. Narayanan's case at para 8 of the decision. It was further observed that appointment, selection, promotion, deputation are all well-known methods of recruitment and even appointment by transfer is not unknown and any rule framed is subject to the other provisions of the Constitution and wherefore it has to be decided on the rule of equity and cannot violate any of the fundamental rights of the petitioners. A reference can also be made to the decision of the Supreme Court in Union of India and Ors. v. Dr. S. Krishna Murthy and Ors., a rule under the Indian Forest Service (Regulation of Seniority) Rules, 1968, Rule 3(2)(d) and Indian Police Service (Regulation of Seniority) Rules, 1954, Rule 3(3)(c) and (d) had been challenged, and while considering the validity of the said rules, their Lordships have observed that the rules prevailing for the benefit of the employee for a long time cannot be interfered with by the Court unless the rules are unconstitutional and that the seniority of the respondents was not taken away or interfered with by the impugned rules and it was also observed that the impugned rules only provided for giving weightage to the Emergency Commissioned Officers and Short Service Commissioned Officers for their past services in the army during the emergency period and repelled the contention of the respondents that the impugned rules would take away the vested rights of the respondents and consequently prejudicially affect their interests. Under the circumstances, the amendment now brought to validate the action of the Corporation cannot be said to be bad and on this count, the amendment cannot be struck down.
17. So far as the argument that the rules were not laid before both the Houses, as required under Section 421(4-A) and (6) of the Act is concerned, suffice it to say that it would not invalidate the rules as it is not a condition precedent but a condition subsequent as held by the Division Bench of this Court in Writ Petition Nos. 5115 to 5387 of 2000 and connected matters decided on 11-1-2001. As stated, the S.L.P. against the said order has been dismissed. This Court in State of Karnataka v. Anjanappa and Company, while considering the scope and ambit of Section 71(4) of the Karnataka Excise Act, 1965 (Karnataka Act No. 21 of 1966), referred to a decision of the Supreme Court in Jan Mohammad Noor Mohammad Bagban v. State of Gujarat and Anr., wherein Section 26 of the Bombay Agricultural Produce Market Act, which is in pari materia with Section 71(4) of the Act came up for interpretation, and their Lordships were of the view that Sub-section (5) of Section 26 having regard to the purposes for which it was made and in the context in which it occurred could not be regarded as mandatory and the rules had been in operation since the year 1941 and by virtue of Section 64 of the Gujarat Act 20 of 1964 they continued to remain in operation and observed as under:
"Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under Section 26(1). It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature. Granting that the provisions of Sub-section (5) of Section 26 by reason of the failure to place the rules before the Houses of Legislature were violated, we are of the view that Sub-section (5) of Section 26 having regard to the purposes for which it is made and in the context in which it occurs cannot be regarded as mandatory. The rules have been in operation since the year 1941 and by virtue of Section 64 of the Gujarat Act 20 of 1964 they continue to remain in operation".
Therefore, under the circumstances, the amendment cannot be declared as ultra vires on this count.
18. The contention of the petitioners that retrospective operation of the amended rule from 25-11-1986 would upset the seniority of the petitioners and therefore the rule is violative of the fundamental right of the petitioners cannot be accepted as it is well-settled that seniority is not a fundamental right and it is merely a civil right as held by the three Judges Bench of the Supreme Court in Bimlesh Tanwar v. State of Haryana, 2003 (2) Supreme 699 : 2008 AIR SCW 1508 and wherefore the contention that the rule would affect the seniority and petitioners' right or status in the seniority list would not be a ground to invalidate the rules as it cannot be said that by making a rule, any of the fundamental rights of the petitioners is ipso facto violated. It is pertinent to note that certain writ petitions with similar facts, were dismissed by this Court, pending the writ petitions filed by the petitioners questioning the seniority assigned to the respondents. In the respective writ petitions the action taken by the Corporation is under challenge as stated in the writ petitions referred to above and the question as to whether the seniority of the petitioners is prejudicially affected by the act of the Corporation has to be considered in each case individually having regard to the facts and circumstances in respect of each of the petitioners in the writ petitions that are filed and pending consideration. In view of what we have discussed, at any rate, in absence of lack of power or of violation of any fundamental right, it cannot be said that the amendment rule is unconstitutional as sought to be declared in the writ petitions.
Accordingly, in view of the said material on record and the reasoning stated above, we hold that the City of Bangalore Municipal Corporation Services (General) Cadre and Recruitment Regulations insofar as they are challenged in these writ petitions, cannot be said to be void, unconstitutional or unenforceable. These writ petitions are dismissed, however, with no order as to costs.