Kerala High Court
V.Sureshkumar vs Bharat Sanchar Nigam Ltd on 14 September, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934
OP (CAT).No. 3714 of 2011 (Z)
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PETITIONER:
-------------------
V.SURESHKUMAR,
S/O VISWAMBARAN,AGED 46 YEARS,
JUNIOR TELECOM OFFICER (OFFICIATING), BROADBAND,
CORE GROUP, BSNL,CTO BUILDING,
TRIVANDRUM, RESIDING AT NSP 139, NSP NAGAR,
KESAVADASAURAM,PATTOM P.O, THIRUVANANTHAPURAM.
BY SRI.P.RAVINDRAN, SENIOR ADVOCATE,
ADVS. SRI.SAJITH KUMAR .V,
SRI.K.RANA DEEP,
SMT.PRIYANKA PRASAD.
RESPONDENTS:
------------------------
1. BHARAT SANCHAR NIGAM LTD.,
REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR,
NEW DELHI, PIN-110 001.
2. THE CHIEF GENERAL MANAGER,
BHARAT SANCHAR NIGAM LTD., TRIVANDRUM- 695 033.
*ADDL. R.3. IMPLEADED:
3. CHANDRIKA PARAMBUR,
TELECOM TECHNICAL ASSISTANT,
TELEPHONE EXCHANGE, BHARATH SANCHAR NIGAM LTD.,
POONKUNNAM, THRISSUR.
* IS IMPLEADED AS ADDL. RESPONDENT NO.3. AS PER ORDER DTD. 24/01/12
IN I.A. NO.906/2012.
R1 & R2 BY SRI. K. RAMAKUMAR, SENIOR ADVOCATE,
ADVS. SRI.V.V.SURESH,S.C,B.S.N.L,
SRI.MATHEWS K.PHILIP,SC, B.S.N.L,
ADDL.R3 BY SRI.K.R.B.KAIMAL, SENIOR ADVOCATE,
SRI.B.UNNIKRISHNA KAIMAL.
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
31-05-2012, THE COURT ON 14/09/2012 DELIVERED
THE FOLLOWING:
O.P.(CAT).NO.3714/2011-Z:
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P.1: COPY OF THE PROCEEDINGS NO.U.O.NO.5-11/2009-PERS-IV
DTD. 18/12/2009 ALONG WITH THE FORWARDING LETTER DTD. 2/12/2009
ISSUED ON BEHALF OF THE R.1.
EXT.P.2: COPY OF THE NOTIFICATION NO. RECCT/30-4/2009 DTD. 20/02/2010
ISSUED ON BEHALF OF THE R.2.
EXT.P.3: COPY OF THE CORRIGENDUM ISSUED BY ORDER NO. RECCT/30-4/2009
DTD. 27/02/2010 ISSUED ON BEHALF OF THE R.2.
EXT.P.4: COPY OF THE RELEVANT PAGES OF THE SELECT LIST ISSUED AS PER
CIRCULAR NO. STA/11-24/2004 DTD. 07/07/2004 ISSUED ON BEHALF OF
THE R.2.
EXT.P.5.A: COPY OF THE PROCEEDINGS DTD. 30/03/2001 AND PROCEEDINGS
ISSUED ON BEHALF OF THE RESPONDENT.
EXT.P.5.B: COPY OF THE PROCEEDINGS DTD. PROCEEDINGS DTD. 31/03/2001
ISSUED ON BEHALF OF THE RESPONDENTS.
EXT.P.6: COPY OF THE J.T.O. RECRUTIMENT RULES DTD. 26TH SEPTEMBER 2001
ISSUED ON BEHALF OF THE R.1.
EXT.P.7: COPY OF THE ORDER NO.5-28/2009-PERS. IV DTD. 12/10/2009 ISSUED ON
BEHALF OF THE R.1.
EXT.P.8: COPY OF THE JUDGMENT DTD. 21/08/1995 IN O.A. NO. 224/1995 OF THE
HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXT.P.9: COPY OF THE PLEADING OF THE O.A. 297/2010 FILED BY THE
PETITIONER BEFORE THE HON'BLE C.A.T.
EXT.P.10: COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN
O.A. NO. 297/2010.
EXT.P.11: COPY OF THE ORDER IN O.A. NO. 297/2010 DTD. 15/03/2011 OF THE C.A.T.,
ERNAKULAM BENCH.
EXT.P.12: COPY OF THE REVIEW APPLICATION FILED BY THE BSNL BEFORE THE
HON'BLE C.A.T., ERNAKULAM BENCH.
EXT.P.13: COPY OF THE ORDER DTD. 30/09/2011 IN R.A. NO. 47/11 OF THE HON'BLE
C.A.T., ERNAKULAM BENCH.
RESPONDENTS' EXHIBITS:
EXT.R2.A: COPY OF THE RECRUITMENT RULES OF J T O DTD. 26/09/2011.
EXT.R2.B: COPY OF THE AMENDMENT OF RECRUITMENT RULES OF J T O-2001
NO.5.28/2009-PERS IV DT.D 12/10/2009.
EXT.R2.C: COPY OF THE LETTER DTD. 26/10/2009 BY THE OFFICE OF CGM,
TRIVANDRUM.
O.P.(CAT).NO.3714/2011-Z:
EXT.R2.D: COPY OF THE LETTER DTD. 09/11/2009 BY THE OFFICE OF CGM,
TRIVANDRUM.
EXT.R2.E: COPY OF THE LETTER DTD. 11/11/2008 BY THE CORPORATE OFFICE
BSNL, NEW DELHI.
EXT.R2.F: COPY OF THE LETTER DTD. 20/02/2010 BY THE OFFICE OF THE CGM
BSNL, TRIVANDRUM.
EXT.R2.G: COPY OF THE LETTER DTD. 09/04/2010 FROM NEW DELHI OFFICE FOR
POSTPONMENT OF EXAMS.
EXT.R2.H: COPY OF THE JUDGMENT OF CENTRAL ADMINISTRATIVE TRIBUNAL IN
O.A. NO.224/10 AND CONNECTED CASES DTD. 15/03/11.
EXT.R2.I: COPY OF THE JUDGMENT OF CENTRAL ADMINSITRATIVE TRIBUNAL IN
R.A. NO. 40/11 AND CONNECTED CASES DTD. 30/09/11.
EXT.R2.J: COPY OF THE LETTER DTD. 02/07/2010 BY THE CORPORATE OFFICE,
BSNL, NEW DELHI.
EXT.R2.K: COPY OF THE JUDGMENT OF CENTRAL ADMINISTRATIVE TRIBUNAL,
HYDERABAD BENCH IN O.A. NO. 644/09 DTD. 05/10/09.
EXT.R2.L: COPY OF THE JUDGMENT BY HIGH COURT OF LUCKNOW AT ALLAHABAD
BENCH IN WRIT PETITION NO. 7696/04 DTD. 07/12/04.
EXT.R2.M: COPY OF THE JUDGMENT BY HIGH COURT OF ANDHRA PRADESH IN
W.P.NO.6357/2006 DTD. 23/11/2009.
EXT.R2.N: COPY OF THE ORDER OF PUNJAB AND HARYANA HIGH COURT
DTD. 13/02/12.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
MANJULA CHELLUR, Ag.C.J
&
A.M.SHAFFIQUE, J.
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O.P(CAT).No. 3714 of 2011
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Dated this the 14th day of September, 2012
JUDGMENT
Manjula Chellur, Ag.C.J. The present petition is directed against the order of Central Administrative Tribunal, admittedly, aggrieved by the decision of the respondent authorities giving retrospective operation of amendment to the Recruitment Rules incorporated by an order dated 12.10.2009 reducing eligibility condition of qualifying service from 10 years to 7 years while competing in the departmental examination for the post of Junior Telecom Officer (for short, 'JTO'), without any words in the amendment notification disclosing the intention of the rule making authority to operate the same retrospectively. The petitioner is in the substantive cadre of Telecom Technical Assistants (for short, 'TTA'), working as JTO on officiating capacity for the last seven years. Initially, the eligibility criterion was 10 years. No promotion came to be made between 2001 and 2010 from TTA to JTO in spite of new recruitment rules came into force in 2009.
OP(CAT).3714/11 2
2. The brief history that led to the present petition is as under: The petitioner along with some other applicants, working as JTOs on officiating capacity, approached Central Administrative Tribunal for several reliefs. The applicants were subjected to screening test as early as 2000 and on having qualified, they are officiating as JTOs ever since then.
3. Junior Telecom Officers Recruitment Rules, 2001 and especially in terms of column No.11 of the schedule thereto (Annexure A1), direct recruitment is for the 50% of the vacancies and the balance 50% is by promotion through a limited internal competitive examination of BSNL. So far as promotion quota of 50%, it is again divided into two parts, 35% and 15%. 35% vacancies have to be filled up by promotion through a limited internal competitive examination from among those, who belong to certain class of employees, including TTA like petitioner, subject to fulfillment of certain educational qualifications as well as 10 years regular service in Group 'C' post. Further, they should not cross the age of 50 years as on the date of such examination. The subject matter of challenge was not with regard to the balance 15% of the posts. The rule came into effect from 26.9.2001. Unfortunately, none of the posts meant for promotion quota came OP(CAT).3714/11 3 to be filled up, though vacancies in the direct recruitment quota came to be filled up on a regular basis. When things stood as stated above, the respondent authorities amended the Recruitment Rules by communication dated 12.10.2009 as per Annexure A2, indicating the qualifying service being reduced to 7 years instead of 10 years. As a matter of fact, on earlier occasion, in T.A.No.6 of 2009, by order dated 21.8.2009, the Tribunal directed the vacancies meant for promotion to be filled up forthwith, which remained unfilled. In pursuance of the same, steps were taken to hold examination and approval of the competent authority was also conveyed for the said purpose, which again was communicated to the respective Telecom Circles as per Annexure A3. So far as this examination, it has to be in accordance with the scheme and syllabus issued by letter dated 20.10.2009 as per JTO Recruitment Rules, 2001. In the said direction, recruiting circles were also directed to calculate the vacancies under the above quota, according to the instructions dated 19.1.1997 issued by DOPT. It is made clear in the said communication that the process was with reference to the directions of the Tribunal in T.A.No.6 of 2009. The recruitment year shown was 2009 and examination was to be held on OP(CAT).3714/11 4 30.5.2010. According to the petitioner, total number of vacancies is 423 and 1.7.2009 is the crucial date for reckoning the age and service conditions. This 423 vacancies pertain to all the years from 2001 to 31.3.2009. Surprisingly, a corrigendum dated 1.7.2010 was issued, which is referred to as Annexure A9 before the Tribunal. In this, though the year of recruitment is shown as 2009, the crucial date for determining the age limit was the date of examination, 30.5.2010 and the crucial date for reckoning regular service conditions would be 1.7.2009. The two notifications, Annexures A8 and A9 would ultimately indicate change of Recruitment Rules, especially crucial date of determining the age conditions as per Annexures A1, A8 and A9. The National Federation of Telecom Employees approached the authorities to publish the year wise vacancies by Annexure A5 letter. Year wise vacancies came to be shown by different Circles by different notifications on community wise break up as well. The effect of Annexures A8 and A9 giving retrospective effect to the Recruitment Rules, according to the petitioner, was arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India, contending that the amendment to the Recruitment Rules can have the effect only as against the vacancies, which arose OP(CAT).3714/11 5 subsequent to publication of notification dated 12.10.2009 and at any stretch of imagination, they cannot have retrospective application to the vacancies, which were in existence prior to publication of the notification. They also contend that 50% of the direct recruitment quota exceeded 600 between the years 2001- 2009. According to them, corresponding number of vacancies are bound to be filled up. Alleging various reasons, they questioned Annexures A8 and A9 so far as its retrospective effect as unconstitutional and sought for quashing of the same.
4. In the reply statement the respondent authorities brought on record several facts and defended their contention regarding the Recruitment Rules. According to them, there was a need to tone up efficiency in service, which led to amendment to the Recruitment Rules only with the intention of improving quality of manpower of BSNL. Upgradation of many posts was a result of changing the minimum qualifying eligibility condition when necessity arose to commensurate with the raised status and raised pay of the post. The question of reducing qualifying service condition from 10 years to 7 years was under consideration since November, 2008, as there was persistent demand from recognised staff union of BSNL. Large number of vacancies existed due to OP(CAT).3714/11 6 non conducting of Limited Internal Competitive Examination (LICE). Therefore, necessity arose for a situation to give opportunity to maximum number of candidates to avail the benefit of promotion, which resulted in a decision of the Managing Committee of the BSNL Board in its 19th meeting held on 13.8.2009, wherein a decision to reduce 10 years to 7 years was taken. This is not in violation of any of the directions in T.A.No.6 of 2009 by the Tribunal, as the direction was only to conduct departmental examination within a stipulated time and not with other terms and conditions. They also contend, non existence of provision in the Recruitment Rules for conducting examination by declaring the vacancies year wise and they sought for dismissal of the application contending that the matter of conducting the examination and the standards fixed for such examinations are exclusively within the domain of the competent authority. In several Original Applications several questions came to be urged challenging the amendment to the Recruitment Rules contending that it can have only prospective effect and not retrospective effect.
5. By in-depth discussion and reasoning, the Tribunal ultimately held that the amendment made to the Rules is not OP(CAT).3714/11 7 retrospective in character and has no application in respect of vacancies, which arose already prior to 12.10.2009. They further held, the crucial date for determination of age as 30.5.2010 as irrational and arbitrary, as the vacancies have to be determined and notified only with reference to the eligibility criterion as on the date of arising of the vacancies or as on the cut of date with reference to the recruitment year, in which vacancies arose. As a result, they held, cut of date as fixed for the vacancies enmass as arbitrary and violative of Article 14 of the Constitution of India.
6. Then coming to another challenge with regard to qualifying years of service reducing the same from 10 to 7 years in Group 'C' for promotion to JTO cadre through LICE, the contention of the petitioner was rejected for the reason that Annexure A2 notification dated 12.10.2009 clearly indicates, a proposal to reduce the prescribed regular service for appearing examination for JTO, was under consideration based on the request of a good number of employees. Therefore, the same came to be reduced after deliberations and held that the amendment is by way of substitution. By applying the rule of interpretation, the effect of the amended rules will be the date on which parent rule came into force. Factually it was held that the reduction of 10 years OP(CAT).3714/11 8 experience to 7 years will not affect any of the applicants, if they had 10 years experience, as the same necessarily include 7 years experience as well. According to the Tribunal, the contention of the applicants that field of choice has been expanded by reducing the qualifying service of 10 years to 7 years, which takes away the right accrued to a limited number of persons, is not based on reasonable argument. This also was rejected by the Tribunal, as there was no mala fide intention for the amendment, as it virtually a substitution and not an amendment. As there is no indefeasible right for promotion, the Tribunal held that introduction of educational qualifications or change of criterion rendering expansion of the scope for good number of people to compete with the applicants is legal and valid. Aggrieved by the same, the present Original Petition is filed.
7. Review Application came to be filed by BSNL and the same was disposed of by holding as under:
"7. The Review Applications are disposed of as follows:
"In paragraph No.14 on page No.36 of the common order, the sentence reading "However, we have tested the amendment made in forgoing paragraphs and have already held for the reasons stated that such amendment cannot be retrospective in character. For the forgoing reasons, it has to be held that OP(CAT).3714/11 9 the amendment made to the rule as per Annexure A-2 is not retrospective in character and has no application in respect of vacancies which have already arisen prior to 12th October2009" should be substituted as under:
'However, we have tested the amendment made in forgoing paragraphs and have already held for the reasons stated that such correction cannot be retrospective in character. For the forgoing reasons, it has to be held that the Annexure A-9 corrigendum dated 27.02.2010 to the Annexure A-8 notification dated 22.02.2010is not retrospective in character and has no application in respect of the vacancies which had already arisen prior to 12th October 2009' Further, the following sentence may be inserted as penultimate sentence in paragraph 15 of the common order dated 15.03.2011 as under:
"It is retrospective in character and the same has application from the date of issue of Annexure A-1 Recruitment Rules."
8. This Original Petition is filed by one of the applicants before the Tribunal in O.A. No. 297 of 2010. Learned Senior Counsel appearing for the petitioner contends that the Recruitment Rules if amended will normally be prospective, unless otherwise provided that it will be operative prospectively. In the absence of disclosure of operation of the amendment with retrospective effect, there is no justification on the part of the Tribunal to conclude that the amendment was by way of substitution giving retrospective OP(CAT).3714/11 10 effect. Reliance is placed on Travencore Rayons Ltd. v. Kerala State Pollution Control Board (2000(1) KLT 175) in respect of the above contention. According to learned Senior Counsel, arguing for the petitioner, eligibility criterion has been reduced from 10 years to 7 years resulting in impairment to the existing obligations by bringing all those persons, who are not eligible against 2008 and 2009 vacancies to become eligible in case Exhibit P7 is operated retrospectively. The zone of consideration will be expanded compelling the petitioner to compete with a large section of people coming in the way of existing right. Wrong interpretation by the Tribunal takes away the right accrued to the petitioner. Need to fill up vacancies is based on the date of occurrence of vacancies and not the time of making appointments. Therefore, the opinion of the Tribunal is directly in conflict with the law declared by this Court in several cases. The relevant date must be definite and should depend upon the volition of authorities, as otherwise determination would end in arbitrary action. Therefore, promotion to the post of JTO from TTAs has to be effected only from those qualified as on the date of occurrence of vacancy. Extending the benefit of Exhibit P7 in Exhibit P2 is patently illegal and unsustainable, according to learned Senior OP(CAT).3714/11 11 Counsel. Similarly, the Tribunal, according to learned Senior Counsel, erred in exercising its review jurisdiction. In the absence of any amendment to the Rules in notifications A8 and A9, there was no necessity for review. Placing reliance on several judgments of the Apex Court, learned Senior Counsel sought for the following reliefs:
"i. To quash Exhibit-P1, Exhibit-P2, Exhibit-P3, Exhibit-P11 and Exhibit-P13;
ii. Declare that benefits of Exhibit-P7 notification dated 12th October 2009 bringing amendment to eligibility conditions can only be applied prospectively and extending the benefit of Exhibit-P7 for the vacancies upto March 2009 is highly illegal and unjust; iii. To direct the respondents to conduct year wise selection to the category of JTO based on the date of occurrence of vacancies of each year from 2001 to 2009 and following the eligibility conditions as on the date of occurrence of vacancies;
iv. Grant such other reliefs as may be prayed for and as the Court may deem fit to grant, and v. Grant the cost of this Original Petition."
9. Learned counsel appearing for the respondent authorities, supporting the decision of the Tribunal, sought for dismissal of the petition and places reliance on Civil Appeal No.1405 of 2007 on the file of the Apex Court, wherein Their Lordships held, expression 'vested right' could only mean a vested Constitutional right and such right cannot be taken away by amendment of the OP(CAT).3714/11 12 rules and held that if vested right is not a Constitutional right, it can be taken away by retrospective amendment of the Rules. Therefore, even a taxing statute can be made retrospectively, which can result in affecting existing rights.
10. Apparently, the present Original Petition is against the challenge of reduction of qualifying experience from 10 years to 7 years, as illegal and arbitrary. According to the petitioner, reduction of years of regular service as qualifying service from 10 years to 7 years has enlarged the field of choice and the vacancy position if not notified year wise, the recruitment made enblock with amended qualification will adversely affect their right, therefore, it amounts to violation of Article 14 of the Constitution. Notification dated 12.10.2009 clearly indicates that the proposal to reduce the prescribed regular service for appearing in the examination for JTO was under consideration based on the request made by the employees and it is as a result of such consideration, the BSNL management had approved the reduction of prescribed regular service from 10 years to 7 years. The Recruitment Rules issued on 10.10.2001 will stand amended to the above extent. This virtually is nothing, but a substitution as held by the Tribunal. It is well settled that an amendment by way of substitution takes OP(CAT).3714/11 13 effect from the date on which the parent rule has come into existence.
11. The question is whether any vested right is taken away, with this reduction of the number of years from 10 years to 7 years. The petitioner will not be affected in any way, as he will not come out of the zone of consideration for promotion to the post of JTO. The only difficulty would be, he has to compete with many more persons, who would come within the zone of consideration by virtue of 7 years being the qualifying service.
12. The question whether the rule making authority is empowered to amend the rule retrospectively, which may even take away a vested right. In order to accept the contention of the petitioner that vested right is taken away, one has to see whether the right in question is a vested right. As held by the Apex Court in an unreported decision in Civil Appeal.No.1405 of 2007, a vested right can only mean a Constitutional right, therefore, Their Lordships held that a vested Constitutional right cannot be taken away by amendment of the Rules. If the vested right is not a Constitutional right, it can be taken away by retrospective amendment to the rules. In this context, it is relevant to mention paragraphs 12 to 19 of the said judgment:
OP(CAT).3714/11 14
"12. Rules udner Article 309 can be changed even durig the subsistence of the old Rules. As held in Raj Kumar v. Union of India AIR 1975 SC 1116 (vide para 7), "Rules made under the proviso to Article 309 of the Constitution are legislative in character, and therefore, can be given effecet to retrospectively."
Thus, rules under the proviso to Article 309 are Constitutional rules, not like rules under a statute. Hence they have the same force as a Statute, though made by the executive.
13. It is well settled that the legislature can legislate retrospectively vide M.P.V.Sundararamier & Co. v. State of Andhra Pradesh, AIR 1958 SC 468, J.K.Jute Mills vs. State of Uttar Pradesh, AIR 1961 SC 1534, Jadao Bahuji vs. Municipal Committee, AIR 1961 SC 1486, Government of Andhra Pradeh vs. Hindustan Machine Tolls Ltd., AIR 1975 SC 2037 (para 8), Nandumal Girdharilal vs. State of Uttar Pradesh, AIR 1992 SC 2084, etc.
14. Hence, the approach of the High Court, in our opinion, was totally incorrect. In State of Punjab and others vs. Arun Aggarwal and others (2007) 10 SCC 402, it was observed (in para 30):
"There is no quarrel over the proposition of law that the normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not the new Rules.
However, in the present case, we have already held that the Government has taken a conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case".
15. In the present case, a conscious decision was taken in 2005 providing that all the posts in question OP(CAT).3714/11 15 should be filled up by Limited Internal Competitive Examination. This was a policy decision and we cannot see how the High Court could have found fault with it. It is well settled that the Court cannot ordinarily interfere with policy decisions.
16. No doubt in some decisions it was held that a vested right cannot be taken away by amendment of the rules. But what does this really mean? Since a rule under the proviso to Article 309 is legislative in character vide Raj Kumar vs. Union of India (supra) the rule can be amended, even with retrospective effect, just as a legislation can be amended with retrospective effect.
17. In our opinion the expression 'vested right' could only mean a vested Constitutional right, since a Constitutional right cannot be taken away by amendment of the rules.
18. This is evident from the Constitution Bench decision of this Court in Chairman, Railway Board vs. C.R.Rangadhamaiah (1997)6 SCC 623. It was held therein that pension is no longer treated as a bounty but was a valuable Constitutional right under Articles 19 (1)(f) and 31(1) of the Constitution, which were available on 1.1.1973 and 1.4.2974 (that is before the 44th Constitution Amendment). Since this was a Constitutional right it could not be taken away by amendment of the rules. The Constitution is the supreme law of the land, and hence a Constitutional right can only be taken away by amending the Constitution, not by amending the rules or even by amending the statute.
19. Hence in view of the aforesaid Constitution Bench decision the other decisions of this Court of OP(CAT).3714/11 16 smaller benches must be understood to mean that a vested Constitutional right cannot be taken away by amendment of the rules. It follows that if the vested right is not a Constitutional right it can be taken away by retrospective amendment of the rules. A legislative act can destroy existing rights, (unless it is a Constitutional right). Thus, even a taxing statute can be made retrospectively, and this usually affects existing rights vide Union of India vs. Madangopal, AIR 1954 SC 158 Jawaharlal vs. State of Rajasthan, AIR 1966 SC 764 (770), Tata Iron & Steel Co. Ltd. vs. State of Bihar, AIR 1958 SC 452, D.G.Gouse & Co. vs. State of Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar Karkhana Ltd. vs. Collector AIR 1979 SC 1972 (para 6-
7), etc."
13. The above decision makes it very clear that rules under Article 309 of the Constitution of India can be changed even during the subsistence of the old rules, as they are legislative in character. Their Lordships at paragraph 22 of the above decision further held as under:
"22. We are of the opinion that the above observations are not sustainable. When Rules are framed under Article 309 of the Constitution, no undertaking need be given to anybody and the Rules can be changed at any time. For instance, if the retirement age is fixed by rules framed under Article 309, that can be changed subsequently by an amendment even in respect of employees appointed before the amendment. Hence, we cannot accept the view taken by the High Court. There is no question of OP(CAT).3714/11 17 equity in this case because it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it. As the Latin maxim states "Dura lex sed lex" which means "The law is hard, but it is the law".
14. Having regard to the above decision of the Apex Court, it is very clear that the so-called vested right claimed by the petitioner not being a Constitutional right, it is not open to him to contend that a vested right is taken away. Similarly, as long as it is not a Constitutional right, any other vested right can be taken away by amendment of the rules. The amendment now in question has retrospective effect and as a matter of fact, no vested right of the petitioner is taken away, as he is not debarred from appearing for the competitive examination to the post of JTO.
Under these circumstances, the order of Central Administrative Tribunal does not warrant interference. Accordingly, the Original Petition is dismissed.
MANJULA CHELLUR, ACTING CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE vgs