Jharkhand High Court
State Of Jharkhand & Ors. vs Union Of India & Ors. on 21 August, 2009
Equivalent citations: 2010 LAB. I. C. 887, 2010 (1) AIR JHAR R 275 (2010) 7 SERVLR 332, (2010) 7 SERVLR 332
Author: M. Y. Eqbal
Bench: Jaya Roy, M. Y. Eqbal
W.P. (C) No.2464 of 2006
In the matter of an application under Article 226 of the Constitution of
India
1. The State of Jharkhand through its Chief Secretary,
Government of Jharkhand
2. The Secretary, Department of Personnel, Administrative
Reforms & Rajbhasha, Government of Jharkhand
3. The Secretary, Road Construction Department,
Jharkhand
... ... ... ... Petitioners
Versus
1. The Union of India
2. The Union Public Service Commission, through its
Secretary, New Delhi
3. State of Bihar through the Chief Secretary, Patna
4. Arun son of Shri Bindeshwari Prasad Thakur, D-3,
Booty Road, Officer's Flat, Ranchi
5. Sri Rajeshwar Prasad, S/o Late Bishwanath Prasad,
Superintending Engineer, Drinking Water and
Sanitation Department, Doranda, Ranchi
... ... ... ... Respondents
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For the Petitioners: M/s. P.K. Prasad, Advocate General
For the Respondents: M/s. Aparesh Kr Singh, Manoj Tandon
------
PRESENT: THE HON'BLE MR. JUSTICE M.Y. EQBAL
THE HON'BLE MRS. JUSTICE JAYA ROY
------
Reserved on: 13.8.2009 Pronounced on: 21st August, 2009
M.Y. Eqbal, J. This writ petition under Article 226 of the Constitution of India
has been filed by the petitioner-State of Jharkhand for quashing the
order dated 13.1.2006 passed by the Central Administrative Tribunal,
Circuit Bench, Ranchi in O.A. No.221/2001 and further for issuance of
writ or order declaring that the two resolutions of the State of
Jharkhand dated 17.1.2003 and its modification dated 5.5.2003 are
lawful and valid in the eye of law.
2. The aforesaid O.A. No.221/2001 was filed by respondent No.4
being aggrieved by the action of the respondents in not taking proper
action for considering his case for appointment to I.A.S. in accordance
with the I.A.S. (Appointment by Selection) Regulations, 1997. Earlier,
the respondent No.4 filed the writ petition being C.W.J.C. No.1701 of
2000 for the same relief and this court directed respondent no.4 to
move first before the Central Administrative Tribunal for appropriate
relief.
2 W.P. (C) No.2464 of 2006
3. The case of respondent No.4 (hereinafter referred to as 'the
petitioner') is that he entered in service in 1980 as Assistant Engineer
and reached at the cadre of Executive Engineer in the pay scale of
Rs.3700-5000 (pre-revised scale). In 1998 his case was recommended by
the Department Selection Committee of Public Works Department
(P.W.D.) for selection in I.A.S. for non-S.C.S. vacancies of 1998.
However, recommendation was returned in 1999 as no decision could
be taken by the State Government. Again in November, 1999, the
Department, Selection Committee of P.W.D. recommended the name of
the petitioner against non-S.C.S. vacancies of 1999. However no
recommendation was sent for two vacancies of 1999 by the State
Government to the committee of Union Public Service Commission as
per the Regulation. Consequently, the petitioner filed writ petition in
the Patna High Court being C.W.J.C. No.1701 of 2000 for issuance of a
direction upon the State of Bihar to send proposal for consideration to
the committee of Union Public Service Commission (in short 'U.P.S.C.')
and for further consequential action and also for preparation of year-
wise select list against year-wise vacancy for selection of I.A.S. from
non-S.C.S. In the meantime, the parent State of Bihar divided and the
State of Jharkhand came into existence with effect from 15.11.2000. On
21.4.2001the successor State of Bihar brought a resolution under Regulation No.4 of 1997 Regulations declaring equivalence i.e. those in the pay scale of Rs.10000-15200 (revised) and higher pay scale, declared equivalent to Deputy Collector and who have remained for 8 years in such scale shall only be eligible for consideration of appointment by selection to I.A.S. under 1997 Regulation. Accordingly, letter was issued by the Department of Personnel and Training, Government of Bihar asking for proposal to be sent to the U.P.S.C. for preparation of select list for appointment by selection to I.A.S. for non-S.C.S. vacancies. In that Departmental letter, names were also asked for in respect of officers of non-.S.C.S. posted in the State of Jharkhand. The petitioner challenged the regulation by filing a writ petition before the Jharkhand High Court declaring equivalence. This Court in terms of order dated 11.9.2001 held that the Jharkhand Government can in no manner act on the resolution dated 21.4.2001 issued by the State of Bihar till it is adopted by it. The Court further held that so far the recommendation of petitioner and others for appointment to I.A.S. is concerned, the aggrieved persons may move the Central 3 W.P. (C) No.2464 of 2006 Administrative Tribunal. The petitioner then filed representation to the Chief Secretary, Government of Jharkhand requesting to take steps in the light of observations of the court to get the vacancies of non-S.C.S. declared and send proposal to the Government of India. Since no action was taken by the Government, the petitioner moved the Central Administrative Tribunal for the relief inter alia for issuance of direction upon the Government of India to notify the vacancies for the years 1998-99 and 1999-2000 for non-S.C.S. category for appointment of I.A.S. to the State of Jharkhand and further for a direction upon the State of Jharkhand to consider the case of the petitioner along with other eligible officers for appointment to I.A.S. against such vacancies for the years 1998-99 and 1999-2000. Further prayer was made to restrain the successor State of Bihar from sending names of the officers against vacancies of the aforesaid years of the united Bihar which has to be re- determined and notified to each successor State. While the main application before the Tribunal was pending, the petitioner filed an application in October, 2002 being Misc. Application No.90 of 2002 seeking direction upon the Government of India and the State Government to get vacancies of 2002 for non-S.C.S. notified and to complete the exercise for appointment by 31st December, 2002 as per the mandate of 1997 Regulations. The aforesaid Misc. Application was disposed of by the Tribunal in terms of the order dated 13.12.2002 directing the Government of India, the State Government and the U.P.S.C. to ensure that vacancies for 2002 for non-.S.C.S. be determined immediately and the process for sending the names be completed well within time by 31.12.2002. It was further observed by the Tribunal that in case of time limit is not adhered to, vacancies for 2002 may not be allowed to lapse. Pursuant to the aforesaid order, the names of suitable non-S.C.S. officers were called for from various departments by the Department of personnel and Training, Government of Jharkhand and by notification dated 24.12.2002, one vacancy was notified for non- S.C.S. quota of Jharkhand by the Government of India for the year 2002. It appears that on 27.12.2002, the Departmental Selection Committee, P.W.D. (Road), recommended the name of the petitioner as the most suitable candidate from the Department fulfilling all the relevant criteria. In the meantime, the Government of Jharkhand filed a supplementary affidavit on 8.1.2003 in the main application praying for 4 W.P. (C) No.2464 of 2006 extension of time which was extended upto 15.1.2003 for completing the formalities in sending to the U.P.S.C. within the extended time.
4. The Department of Personnel and Training came with a resolution of equivalence dated 17.1.2003. According to the resolution those who have remained in the prescribed scale of Rs.3000-4500 or revised scale of Rs.10000-15200 or above scale for 8 years are declared to be equivalent to Deputy Collector under Civil Services. However, in spite of the order passed by the Tribunal extending the time limit, the exercise was not completed although several letters were issued by the Department of Personnel and Training to all departments asking for names for filling of non-.S.C.S. quota of one vacancy for appointment to I.A.S. By letter dated 4.3.2003 issued under the signature of Deputy Secretary, Department of Personnel and Training, to the Secretary, P.W.D. (Road), request was made to send his recommendation in relation to the petitioner in the light of the criteria laid down in the resolution dated 17.1.2003. In reply to that letter, the Secretary, P.W.D. (Road) disclosed the details of the petitioner in proforma attached showing respondent No.4 has remained in the pre-revised scale of Rs.3000-4500 since December, 1999 in Class-I and thereafter in prescribed scale of Rs.3700-5000 since October, 2000 in Class-I till date. While the correspondence was going on, the State of Jharkhand came with another notification/resolution issued by the Department of Personnel and Training amending the earlier resolution dated 17.1.2003. According to the aforesaid resolution, the pay scale of Rs.10000-15200 (or pre-revised scale of Rs.3000-4500) and Rs.3700-5000 which revised scale is Rs.10000-15200 or higher scale officers of non- S.C.S. who fulfilled this criteria for 8 years were declared equivalent to the rank of Deputy Collector.
5. The Central Administrative Tribunal after discussing the entire facts of the case and the developments subsequent to the filing of the application by the petitioner formulated a question for consideration as to whether the declaration of equivalence by the subsequent resolution dated 5.5.2003 issued by the State of Jharkhand is proper. The Tribunal further after considering the ratio decided by the Supreme Court in number of decisions came to the conclusion that the notification issued by the Government of Jharkhand declaring equivalence of non-.S.C.S. Officers belonging to Engineering Service in the scale of Rs.10000-15200 with that of Deputy Collector (Rs.6500-10500) is bad in law and 5 W.P. (C) No.2464 of 2006 accordingly, the said notification was quashed and set aside and a direction was issued to the respondents for reconsideration of the matter in accordance with law. The State of Jharkhand was directed to invite nominations for Engineering Services in accordance with the new equivalence decided for the sole vacancy of 2002. It was further directed that the review selection committee will be held by the U.P.S.C. within two months thereafter and the Central Government as a cadre controlling authority will take final decision within a period of one month.
6. In this writ petition, the State of Jharkhand (hereinafter referred to as 'respondent-State') assailed the impugned order passed by the Tribunal as being illegal and wholly without jurisdiction.
7. Mr. P.K. Prasad, learned Advocate General appearing for the State of Jharkhand, firstly contended that the petitioner was not eligible for being considered since he had not completed 8 years of service in the post declared equivalent to Deputy Collector by the State of Jharkhand. Learned Advocate General submitted that the resolution dated 17.1.2003 was issued, according to which those in the non-State Civil Services (N.S.C.S.) in the scale of Rs.10000-15200 (unrevised Rs.3000-4500) was declared equivalent to Deputy Collector. However, it was found that the revised scales were of two categories, namely, Rs.3000-4500 and 3700-5000. The unrevised scale of Rs.3000-4500 was revised in Fifth Pay Commission into two scales, namely, Rs.6500-10500 and 10000-15200. Similarly, unrevised scale of Rs.3700-5000 was also revised i.e. for some posts it was revised to Rs.10000-15200 and for some posts it was revised in the pay scale of Rs.6500-10500. Therefore, by subsequent resolution dated 5.5.2003, the equivalence declaration was clarified and amended. Learned Advocate General submitted that the Tribunal has erred in law in deciding the equivalence which is an executive function and as per the rules and regulations, the equivalence has to be determined by the State Government. According to the learned Advocate General, the Courts or the Tribunals cannot determine equivalence since it is a policy decision of the Government. Learned Advocate General further submitted that the Tribunal was not justified in treating the Deputy Collector (State Civil Services) and the petitioner (non-State Civil Services) on similar footing. It is contended that the Tribunal has no jurisdiction to entertain any claim or any application which were filed during pendency of the main application 6 W.P. (C) No.2464 of 2006 particularly when the resolution declaring equivalence issued by the Government of Jharkhand dated 17.1.2003 and 5.5.2003 were not even challenged. Lastly learned Advocate General submitted that the Tribunal exceeded in its jurisdiction and, therefore, the impugned order passed by the Tribunal cannot be sustained in law.
8. Mr. Apresh Kumar Singh, learned counsel appearing for the petitioner-respondent no.4, on the other hand, firstly submitted that under the Administrative Tribunal Act,1985 the Central Administrative Tribunal has the jurisdiction, power and authority, in relation to the matter relating to recruitment to any of All India Services. Learned counsel submitted that the respondent no.4 belongs to a non-State Civil Service, is possessing all required criteria for being selected for promotion to Indian Administrative Service. His name was recommended by his parent department in the erstwhile State of Bihar against one vacancy notified in the year 1998. Learned counsel submitted that the respondent no.4 is the engineer holding a gazetted post under PWD, which is a non-State Civil Service and it was only because of the fact that the Government did not send any name to the Committee to the Union Public Service Commission for further consideration, the vacancy remained unfilled up. Learned counsel submitted that the interim orders passed by the Tribunal during the pendency of the main application directing the respondents to declare vacancy belonging to the non-State Civil Services quota for the year 2002 is perfectly legal, valid and justified. Learned counsel submitted that the respondent's case was deliberately excluded from the recommendation made by the PWD Department in March,2003, although he fulfilled all the relevant eligibility criteria. Learned counsel further submitted that the declaration of equivalence declared by resolution dated 17.1.2003 and subsequently on 5.5.2003 is not applicable to the case of the respondent inasmuch as his case had to be considered for the sole vacancy of 2002. According to the learned counsel the Resolution dated 5.5.2003 cannot have retrospective effect to defeat the vested right of the respondent which has accrued to him on being posted in the prescribed scale of pay of Rs.3000-4500/- in Class-I since December,1990. Mr. Singh further submitted that the case of the respondent stands on similar footing to those of non-State Civil Service officers namely Sri R.S.Verma and others, whose cases were decided by the Tribunal on 10.9.1998 in O.A.No.214 of 1997. In support 7 W.P. (C) No.2464 of 2006 of his contention that the Tribunal has the jurisdiction and power of judicial review, learned counsel relied upon the decision of the Supreme Court in the case of L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261, Ashok Lanka & another vs. Rishi Dixit & others, (2005) 5 SCC 598, Chaitanya Kumar vs. State of Karnataka (1986 2 SCC
594. Learned counsel submitted that the Tribunal has rightly relied upon the principles laid down by the Supreme Court in the case of T. Sham Bhatt vs. Union of India, 1994 (Supp.) 3 SCC 340.
9. Before deciding the issue involved in this writ petition, I would first like to refer some of the relevant provisions of law relating to recruitment in the Indian Administrative Service. The All India Services Act, 1951 was enacted to regulate the recruitment and the conditions of service of persons appointed to all India Services common to the Union and the State. Section 3 of the aforesaid Act confers power to the Central Government to make rule after consultation with the Governments of the States concerned for the regulation of recruitment and the condition of service of persons appointed, to all India Services. By All India Service (Amendment) Act,1975, a new sub-section (1-A) was inserted in Section 3 to the Act. For better appreciation Section 3 of the Act reproduced herein below:
"3-- Regulation of recruitment and conditions of service.--(1) the central Government may, after consultation with the Governments of the States concerned [ including the State of Jammu and Kashmir, (and by notification in the official Gazette) make rules for the regulation of recruitment, and the condition of service of persons appointed, to an All-India Service.
"(1A) The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.
(2) Every rule made by the Central Government under this section and every regulation made under or in pursuance of any such rule, shall be laid, as soon as may be after such rule or regulation is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in such rule or regulation or both Houses agree that such rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be ; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation."8 W.P. (C) No.2464 of 2006
10. In exercise of power conferred by Section 3 of the Act, the Central Government framed rules called the Indian Administrative Service (Recruitment) Rules,1954. Rule 4 of the said rules lays down the method and procedure for recruitment to all India Service. Rule 4 of the said rules reads as under:
"4. Method of recruitment to the Service.--(l) Recruitment to the Service after the commencement of these rules, shall he by the following methods, namely:
(a) by a competitive examination;
(aa) [* * *1
(b) by promotion of substantive member of a State Civil Service;
(c) by selection, in special cases from amongst persons who hold in a substantive capacity gazetted posts in connection with the affairs of a State and who are not members of a State Civil Service.
(2) Subject to the provisions of these rules,--
(a) the method or methods of recruitment to be adopted for the purpose of filling up any particular vacancy or vacancies as may be required to be filled during any particularly period of recruitment shall be determined by the Central Government in consultation with the Commission and the State Government concerned.
(b) the number of persons to be recruited by each method shall be determined on each occasion by the Central Government in consultation with the State Government concerned..] Provided that where any such vacancy or vacancies relate to a State Cadre or a Joint Cadre the State Government in consultation with the Commission.
(3) Notwithstanding anything contained in sub-rule (I), if in the opinion of the Central Government the exigencies of the Service so require, the Central Government may, after consultation with the State Governments and the Commission, adopt such methods of recruitment to the Service other than those specified in the said sub-rule, as it may by regulations made in this behalf prescribe.
11. Rule 6 of the said rules provides that all appointments to the service after the commencement of these rules shall be made by the Central Government and no such appointment shall be made except after recruitment by one of the methods specified in Rule 4.
12. Rule 8 of the said rules, which is relevant for the instant case, provides, inter alia, the procedure for recruitment by promotion or selection for appointment to the State and Joint Cadre. Rule 8 of the said rules reads as under:
"8. Recruitment by promotion or selection for appointment to State and Joint Cadre.- (1) The Central Government may, on the recommendations of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Government and the Commission, to the Service substantive members of a State from time to time, make recruit persons by promotion from amongst the State Civil Service.9 W.P. (C) No.2464 of 2006
(2) The Central Government may, in Special circumstances and on the recommendation of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, alter consultation with the State Governments and the Commission, from time to time, make recruit to the Service any person of outstanding ability and merit serving in connection with the affairs of the State who is not a member of the State Civil Service of' that State but who holds a substantive capacity]. (3) (a) Where a vacancy occurs in a State Cadre which is to be filled under 'the provision of this rule, the vacancy shall be filled by promotion of a member of the State Civil Service or, as the case may be, by selection of any other officer serving in connection with the affairs of that State. -
(b) Where a vacancy occurs in a Joint Cadre which is to be filled under the provisions of this rule, the vacancy shall, subject to any agreement in this behalf be filled by promotion of a member of the State Civil Service of arty of the States constituting the group or as the case may be, by selection of any other officer serving in connection with the affairs of any such State.
13. Rule 9 of the said rules provides that the number of persons to be recruited under Rule 8 in any State or group of States shall not, at any time, exceed 33 and 1/3 per cent of the number of senior posts under the State Government, Central deputation reserve, State deputation reserve and the training reserve in relation to the State or to the group of States. Proviso to Rule 9 states that the number of persons recruited under sub-rule (2) of Rule 8 shall not at any time exceed 15% of the number of persons recruited under Rule 8.
14. The Central Government made regulations called the Indian Administrative Service (Appointment by Selection ) Regulation, 1956 on the recommendation of the State Government and the Union Public Service Commission for recruitment to All India Services, any person of outstanding ability and merit serving in connection with the affairs of the State, who is not a member of State Civil Service. Regulation 3 laid down the eligibility and mode of selection and appointment to the State Service. The said Regulation, 1956 was substituted by another Regulation called the Indian Administrative Service (Appointment by Selection) Regulation, 1997. Regulation 3 provides that Central Government in consultation with the State Government concerned shall determine the number of vacancies for which recruitment may be made under these Regulations each year. However, the number of vacancies shall not exceed the number of substantive vacancies, as on the first day of January of the year. Regulation 4 of the said Regulation of 1997 provides that State Government shall send proposals for 10 W.P. (C) No.2464 of 2006 considerations to the committee and Regulation 5 speaks about duty of the committee. Regulation 4 reads as under:-
"4. State Government to send proposals for consideration of the Committee.--(1) The State Government shall consider the case of a person not belonging to the State Civil Service but serving in connection with the affairs of the State, who--
(i) is of outstanding merit and ability; and
(ii) holds a Gazetted post in a substantive capacity; and
(iii) has completed not less than 8 years of continuous
service under the State Government on the first day of January of the year in which his case is being considered in any post which has been declared equivalent to the post of Deputy Collector in the State Civil Service and propose the person for consideration of the Committee. The number of persons proposed for the consideration of the Committee shall not exceed five times the number of vacancies proposed to be filled during the year. Provided that the State Government shall not consider the case of a person who has attained the age of 54 years on the first day of January of the year in which the decision is taken to propose the names for the consideration of the Committee. Provided also that the State Government shall not consider the case of a person who, having being included in an earlier select list has not been appointed by the Central Government in accordance with the provisions of Regulation 9 of these regulations."
15. Regulation 5, inter alia, provides that the Committee shall meet every year to consider the proposal of the State Government made under Regulation 4 and recommend the names of the persons for appointment to the service. It further provides that suitability of a person for appointment to the service shall be determined by scrutiny of Service records and personal interview. According to Regulation 6 the recommendations of the Committee made under Regulation 5 shall be placed before the State Government concerned which shall forward the same to the Commission for approval. Under Regulation 7 the Commission shall consider the list prepared by the Committee, the observations, if any, of the Central Government and State Government concerned may approve the list with amendments, if any. Regulation 8 provides that appointment of persons who are included in the select list shall be made by the Central Governmental within a period of sixty days.
16. From reading of the relevant provisions of the Act, Rules and the Regulation referred to and quoted herein above, it is manifestly clear that the Act, Rule and Regulation of 1997 provides for recruitment to the I.A.S from Non-SCS. The provision of Regulation 1997 are in pari material with the earlier Regulation of 1956. As per Regulation-4 of 1997 Regulation persons belonging to the Non-SCS is required to fulfill 11 W.P. (C) No.2464 of 2006 three criteria, i.e. he or she should be of outstanding merit and eligibility, holds a gazette post in a substantive capacity and has completed not less than 8 years of continuous service under the State Government on the first day of January of the year in which his case is being considered on any post which has been declared equivalent of the post of Deputy Collector in the State Civil Services.
17. Admittedly, the State Government did not send any names to the Union Public Service Commission under the Regulation for further consideration by the Commission, those vacancies remained unfilled for the years 1998 and 1999 and no officer of Non-SCS could be appointed.
18. Before the subsequent amended resolution dated 5.5.2003 was issued by the Government of Jharkhand, there is no dispute that respondent no.4 was fulfilling all the three criteria mentioned hereinabove. It was only after declaration of equivalence subsequently made on 5.5.2003, the candidature of respondent no.4 was excluded by giving retrospective effect the aforesaid resolution dated 5.5.2003. The State Government has not disputed the fact that the case of respondent no.4 was earlier recommended in the year 1998 and 1999 and also against the vacancy of 2002 by his parent department. At this stage, it is worth to mention here that relevant date of reckoning the eligibility of Non-IAS Officers is the first day of January of a particular year in which the vacancy arises.
19. Admittedly, in the instant case, vacancy was declared for the year 2002, while resolution declaring equivalent criteria was issued on 17.1.2003 without making it effective retrospectively.
20. It is a cardinal principle of interpretation that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective. It is equally well settled that unless there are words in the statute sufficient to show by intention of the legislature to effect existing rights, it is deemed to be prospective. By judicial pronouncements, it has been held that provisions which touch the right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary implication.
21. So far as the delegated legislation is concerned, it can have retrospective operation if such power is conferred by the statute in express words or may be inferred by necessary implication. In absence 12 W.P. (C) No.2464 of 2006 of such express or necessary implication, the subordinate legislation cannot have retrospective operation.
22. In the case of K.C. Arora and another Vs. State of Haryana and others [(1984) 3 S.C.C. 281), the Supreme Court observed: -
"5. Keeping in view the needs of the country and assurances contained in conditions of service in executive instructions the petitioners and the appellants and many others like them joined the army during the emergency as commissioned officers in 1963-64. They were commissioned officers in the Indian Army for more than five years and after their release from the Army they were entitled to benefits vested in them under the conditions of service."
23. In the case of P.D. Aggarwal and others Vs. State of U.P. and others [(1987) 3 S.C.C. 622], the Supreme Court while dealing with a question with regard to seniority and promotion and interpreting the rule, followed the earlier decisions in E.P. Royappa's case [AIR 1974 S.C. 555] and held that there should not be arbitrariness in State action and the State action must ensure fairness and equality of treatment. It is open to judicial review whether any rule or provision of any Act has violated the principles of equality and non-arbitrariness and thereby invaded the rights of citizens guaranteed under Articles 14 and 16 of the Constitution.
24. In the case of P. Mahendran Vs. State of Karnataka [(1990) 1 S.C.C. 411], the Supreme Court observed: -
"5. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter."13 W.P. (C) No.2464 of 2006
25. In the case of T. Sham Bhat Vs. Union of India and another [1994 Supp (3) S.C.C. 340], the appellants who were Class-I Officers holding substantive gazetted posts in the Government of Kerala and belonged to non-State civil Service challenged the amended regulations which came into force on 30.3.1989 making the non-State Civil Services Class-I Officers including the appellant eligible for selection to the Indian Administrative Services until they completed 12 years of continuous service in substantive gazetted post. According to the unamended regulation, the non-State Civil Service Class-I Officers were required to complete 8 years of continuous service in gazetted involving duties comparable in importance and responsibility to that of Class-I officers in the gazetted posts of State Civil Service to make such officers eligible for the selection to the Indian Administrative Service. The appellant being a Class-I officer of the non-State civil Service whose possible selection to the Indian Administrative Service on completion of 8 years of continuous service was foreclosed by the 2nd amended regulation. The constitutionality of the amended regulation was challenged before the Tribunal as that inhibited by Articles 14 and 16 of the Constitution of India. The Tribunal rejected the appellant's challenge to the constitutionality of 2nd Amendment Regulation and the matter came to the Supreme Court. The Supreme Court observed: -
"What has been done by the IAS Second Amendment Regulations, if could be illustrated, is the same as pooling together a Senior Collector in State Civil Service and a Deputy Tahsildar in State Civil Service and make them a common class State Civil Service officers and ask the State Government to recommend the cases of either of them for appointment to Indian Administrative Service. No doubt, doing of such a thing by the Central Government appears to have been attempted, although later on, fortunately, given up obviously realising that such thing if done could have the effect of demoralising Class I officers in State Civil Service, since the same was bound to go against the accepted notions that it is only senior State Civil Service officers who could be considered for appointment to Indian Administrative Service and not officers in the lower rung. Hence, the classification of officers brought about by Regulation 2 of the IAS Second Amendment Regulations, is ex facie arbitrary, unreasonable and discriminatory and violates Articles 14 and 16 of the Constitution. Again Rule 6 of the IAS Recruitment Rules, when by making it clear that initial appointments to be made to Indian Administrative Service from both officers of State Civil Service and non-State Civil Service on senior time-scale of pay and not junior time-scale of pay on which persons directly recruited for that service would be appointed, demonstrates unequivocally that Class I officers, in State Civil Service and in non-State Civil Service already in 14 W.P. (C) No.2464 of 2006 senior scales of pay or in closer scales of pay and not Class II officers in State Civil Service and in non-State Civil Service, drawing salaries falling below junior scales of pay, classification done under Regulation 2 of the IAS Second Amendment Regulations to provide eligibility to non-State Civil Service Class II officers cannot but be arbitrary and unreasonable, as would attract the inhibition of Articles 14 and 16 of the Constitution.
20. Further, we are unable to see, any reason as to why the period of 8 years' continuous service of non-State Civil Service Class I officers which made them eligible for selection to the Indian Administrative Service under the IAS Selection Regulations should have been increased to 12 years of their continuous service by Regulation 2 of the IAS Second Amendment Regulations. In fact, no plausible reason has been put forth as to why such increase was made. Since such increase in number of years of continuous service of non-State Civil Service Class I officers to make them eligible for selection to the Indian Administrative Service deprived them of the right to be considered for selection under the IAS Selection Regulations which held the field for over 33 years, with no palpable reason, Regulation 2 of the IAS Second Amendment Regulations which brought about such deprivation has to be regarded as unjust, arbitrary, unreasonable and that which arbitrarily affected the legitimate and normal expectations of non-State Civil Service Class I officers and was that inhibited by Article 14 of the Constitution."
26. It is a fundamental rule of English Law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinction implication. While discussing the retrospective operation of legislation, F.A.R. Bennion in her book Bennion on Statutory Interpretation (Fifth Edition) states, "Principle against doubtful penalization. It is a general principle of legal policy that no one should suffer detriment by the application of a doubtful law. The general presumption against retrospectivity means that where one of the possible opposing constructions of an enactment would impose an ex post facto law, that construction is likely to be doubtful. If the construction also inflicts a detriment, that is a second factor against it. A retrospective enactment inflicts a detriment for this purpose 'if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. The growing propensity of the courts to relate legal principle to the concept of fairness was shown by Staughton LJ when he said:
'In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears'.
Where an enactment clearly sets out to modify accrued rights there can be no room for the presumption against doubtful penalisation.15 W.P. (C) No.2464 of 2006
27. The same principle applies to the retrospective operation of delegated legislation. Since the principles regarding retrospectivity are based on public policy, it follows that they apply equally to delegation legislation. However, the legislative intention needs to be gathered by considering both the enabling Act and the instrument made under it. If retrospectivity is beyond the power conferred by the Act, the doctrine of ultra vires comes into play.
28. In the instant case, as noticed above, sub-section (1-A) of Section 3 of the All India Services Act confers delegated power to make rule and to give retrospective effect, but no retrospective effect shall be given to any rule so as to prejudicially affect the interest of any person to whom such rule may be applicable. For better appreciation, sub- section (1-A) of Section 3 of All India Services Act is re-quoted herein below: -
"(1A) The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.
(2) Every rule made by the Central Government under this section and every regulation made under or in pursuance of any such rule, shall be laid, as soon as may be after such rule or regulation is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in such rule or regulation or both Houses agree that such rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be ; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation."
29. As stated above, petitioner /respondent No.4 joined as Assistant Engineer in the year 1980 and reached to the scale of Rs. 3000-4500/- with effect from 10.12.1990 and continued in that scale till his promotion as Executive Engineer. Petitioner was found to be the most meritorious candidate of the year 1998 and 1999 and his case was recommended by the department for consideration against the vacancy for the year 1998. The name of applicant was again recommended against two vacancies for 1999. The petitioner moved the High Court but he was directed to approach the tribunal. It was contended that unfulfilled vacancies prior to reorganization has to be apportioned 16 W.P. (C) No.2464 of 2006 between the successor state and select to be prepared from the year 1998 to 2001 and the State of Bihar should be restrained from sending names against the existing vacancy. In the meantime, two resolutions, one dated 17.1.2003 and another amended resolution dated 5.5.2003 were issued , thereby petitioner was debarred from being considered for recommendation on the ground that he does not hold an equivalent post as per resolution dated 5.5.2003.
30. The Tribunal has gone in detail on the issue as to whether decision to equivalence taken by the State by the impugned resolution is proper. The Tribunal considered the comparative pay scales, duties and responsibilities of the Engineering Service and Deputy Collector to arrive at a conclusion regarding equivalence of Non-SCS officers in the pay scale of Rs.10,000-15,200/- with the Deputy Collector. The Tribunal called for information regarding recommendation of 3rd, 4th, 5th and 6th Fitment Committee's Report and discussed in detail about the said reports and came to the conclusion that basic grade of Bihar Engineering Service was same as Deputy Collector. The Tribunal also referred comparative position of pay scale of Bihar Civil Service( subsequent Bihar Administrative Service) and the Bihar Engineering Service and finally come to the conclusion that notification of Government of Jharkhand declaring equivalence of Non-SCS officers belonging to Engineering Service in the scale of Rs. 10,000-15,200/- with that of Deputy Collector ( Rs. 6500-10,500/-) is bad in law.
31. Admittedly, the respondent no.4 being an officer of Non-SCS continuously enjoyed equal status with the rank of Deputy Collector but by issuing the resolutions in 2003, he has been denied equal status with that of the Deputy Collector. It is, therefore, evident that the resolution declaring equivalence is against the legitimate policy underlying statutes particularly Section 3(1a) read with Rule 8(2) of the I.A.S(Recruitment) Rules as also the Regulation.
32. As regards the point raised by the State that the Tribunal has no jurisdiction to determine and decide the validity of resolution of equivalence declared by the delegated legislation, it can safely be concluded that the Tribunal can go into the question and find out whether such resolution suffers from serious arbitrariness.
33. In the case of L. Chandra Kumar vs. Union of India and others [(1997) 3 S.C.C. 261], one of the questions that came for consideration before the Constitution Bench of the Supreme Court was as to whether 17 W.P. (C) No.2464 of 2006 power of judicial review vested in the High Courts and the Supreme Court under Articles 226/277 and 32 of the Constitution of India is part of the basic structure of the Constitution. The Constitution Bench also considered the question as to whether the Tribunal can go into the question involving the constitutionality of any provision of the Administrative Tribunals Act, 1985. On the second question the Constitution Bench observed that though the subordinate judiciary or Tribunal created under ordinary legislation cannot exercise the power of judicial review of the legislative action to the exclusion of the High Court and the Supreme Court, there is no constitutional prohibition against their performing a supplemental role in this respect. Their Lordships held: -
"90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.
91. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds 18 W.P. (C) No.2464 of 2006 and it is forced to perform the role of a first appellate court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution. In R.K. Jain case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunal on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.
92. We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.
93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they 19 W.P. (C) No.2464 of 2006 question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."
34. Even assuming that the Tribunal had no jurisdiction to declare the resolution as bad in law but we are of the considered opinion that the said resolution dated 17.1.2003 and 5.5.2003 cannot be made applicable so far as respondent no.4 is concerned. It is also worth to mention here that Government of Jharkhand has failed to fill up even one vacancy to the Non-Civil Service quota of I.A.S. since the date when Jharkhand State came into existence and for one reason or other the officers belonging to Non-SCS have been deprived of their legitimate claim to be considered for promotion to I.A.S.
35. After having given our anxious consideration in the matter and facts and law discussed herein above, we do not find any reason to interfere with the order passed by the Tribunal.
36. For the reason aforesaid, there is no merit in this writ petition, which is, accordingly, dismissed.
(M. Y. Eqbal, J) Jaya Roy, J.
(Jaya Roy, J) Jharkhand High Court, Ranchi Dated, the 21st day of August, 2009 Raman/ A.F.R