# [1976] 3 S.C.R. 237

- **Citation:** [1976] 3 S.C.R. 237
- **Court:** Supreme Court of India
- **Decided:** 1976
- **Case number:** Civil Appeals Nos. 131 of 1971
- **Bench:** A. N. Ray, M.H. Beg, R.S. Sarkaria, P.N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1976-3-s-c-r-237-6758
- **Pages:** 10

## Headnote

Constitution of India-Articles 245 & 246-Schedule seven-List II entrv
41---lnlerpretation of legislative entries-subsidiary or ancillary to subjeCt
covered by e11trie.1-J11dicial function and legislative function-Whet!ier legi:-J-
}ature can overrule a judicial pro1101111cen1e11t by a bare declaration-Whetlicr
can remove basis of judicial pronouncement.
The appellant v,ias a District & Sessions Judge.
By a Memorandum dated
28-2-1963, the State Government raised the age of compulsory retirement for
Government servants to 58 years. The said Memorandum, however, empowered
the Government to retire a Government servant after he attains tilel age of 5 5
years. Thereafter, rules under the proviso to Article 309 of the Constitution
were framed whereby the age of ~uperannuation was raised to 58 years. However the clause empowering the Government to retire a Government servant after
the age of 55 years, was not incorporated in the said rules.
The appellant was
retired from service after he completed 55 years and before he completed 58
years, The challenge to the said order of compulsory retirement succeeded in
this Court. This cOu1t held on 23-1-1967 as under:
"The appellant will be deemed to have continued in the service of
the Government in spite of that order. As. however. the appellant
attained the age of 58 years, in August, 1966, it is. not possible now to
direct that he should be put in service.
But he will be entitled to
such benefits as may accrue now to him by virtue of the success of the
Y.Tit petition. The appellant will get
his
costs from
the State
throughout."
'fhereafter, an Ordinance .was pron1ulgated Which later on became an Act
of the ~fadhya Pradesh Legislature. The said Act validated the retirement of
certain Government servants including the appellant, despite the judgment of
this Court. The act was made effective from 1st March 1963 and it ern~owered
the Governn1ent to retire a Government servant on his attaining the age of
5? years.
The appellant again filed a Writ Petition in the High Court which was
disn1issed.
In an appeal the appellant contended before this Court :
1. The Act hris heen passed to OVLrrulc a decision of this Court which the
legislature has no power to do.
2. The 1natter having once been decided by the Supreme Court was barred
by the principle of res judicata.
3.
The Act gives naked PQ\Ver to the authorities to retire r..ny employee
after he attains the age of 55 years and provides no guidelines for the exercise
of the power.
4.
A right of property being a judgment debt protected by Article 19(1)(f)
of the Constitution, the impugned Act could not have expropriated without providing for any compensation. It is ultnt vi res Article 31 (2) of the Constitution.
A
B
c
D
E
F
G
5.
1'he impugned Act is ultra vires the Constitution since it 5e'eks to validate. the ret~r~ment .of the appel~ant and others l!ke him by changing their
service conditions with retrospective effect.
In doing so, the Legislature has
H
over-stepped the limits of legislative power.
6.
F.ve11 if the impugned Act is valid, on a proper construction it Jocs not
vacate the decree of this Court.
...
A
B
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238
SUPREME COURT REPORTS
[1976) 3 S.C.R.
Dismissing th~ appeal by certificate under Article 132(1) and 133(1)(a) to
(c),
HELD : 1. The decree of this Court is not a money decree raising a iudgme?t debt. lt is a declaratory decree declaring that the order compulsorily
retiring the appellant was invalid. The further declaration that he would be
entitled to such benefits as might accrue to him by virtue of the succes'> of the
Writ Petition, was only incidental or anciliary, to the main relief and will fall
or stand with the same.
[242 G-H]
•
2. The distinction between a Legislative act and a Judicial act is well known
though in some s-pecific instances the line which separates one category from the
other !f13V not he easily discernible. Adjudication of the rights of the parties
accC?rd1ng to Jaw enacted by the Legislature is a j

## Text

...
I. N. SAKSENA
\-',
THE ST A TE OF MAD HY A PRADESH
lanuury 23, 1976
237
[A. N. RAY, CJ., M.H. BEG, R.S. SARKARIA AND P.N. SHINGHAL, JJ.]
Constitution of India-Articles 245 & 246-Schedule seven-List II entrv
41---lnlerpretation of legislative entries-subsidiary or ancillary to subjeCt
covered by e11trie.1-J11dicial function and legislative function-Whet!ier legi:-J-
}ature can overrule a judicial pro1101111cen1e11t by a bare declaration-Whetlicr
can remove basis of judicial pronouncement.
The appellant v,ias a District & Sessions Judge.
By a Memorandum dated
28-2-1963, the State Government raised the age of compulsory retirement for
Government servants to 58 years. The said Memorandum, however, empowered
the Government to retire a Government servant after he attains tilel age of 5 5
years. Thereafter, rules under the proviso to Article 309 of the Constitution
were framed whereby the age of ~uperannuation was raised to 58 years. However the clause empowering the Government to retire a Government servant after
the age of 55 years, was not incorporated in the said rules.
The appellant was
retired from service after he completed 55 years and before he completed 58
years, The challenge to the said order of compulsory retirement succeeded in
this Court. This cOu1t held on 23-1-1967 as under:
"The appellant will be deemed to have continued in the service of
the Government in spite of that order. As. however. the appellant
attained the age of 58 years, in August, 1966, it is. not possible now to
direct that he should be put in service.
But he will be entitled to
such benefits as may accrue now to him by virtue of the success of the
Y.Tit petition. The appellant will get
his
costs from
the State
throughout."
'fhereafter, an Ordinance .was pron1ulgated Which later on became an Act
of the ~fadhya Pradesh Legislature. The said Act validated the retirement of
certain Government servants including the appellant, despite the judgment of
this Court. The act was made effective from 1st March 1963 and it ern~owered
the Governn1ent to retire a Government servant on his attaining the age of
5? years.
The appellant again filed a Writ Petition in the High Court which was
disn1issed.
In an appeal the appellant contended before this Court :
1. The Act hris heen passed to OVLrrulc a decision of this Court which the
legislature has no power to do.
2. The 1natter having once been decided by the Supreme Court was barred
by the principle of res judicata.
3.
The Act gives naked PQ\Ver to the authorities to retire r..ny employee
after he attains the age of 55 years and provides no guidelines for the exercise
of the power.
4.
A right of property being a judgment debt protected by Article 19(1)(f)
of the Constitution, the impugned Act could not have expropriated without providing for any compensation. It is ultnt vi res Article 31 (2) of the Constitution.
A
B
c
D
E
F
G
5.
1'he impugned Act is ultra vires the Constitution since it 5e'eks to validate. the ret~r~ment .of the appel~ant and others l!ke him by changing their
service conditions with retrospective effect.
In doing so, the Legislature has
H
over-stepped the limits of legislative power.
6.
F.ve11 if the impugned Act is valid, on a proper construction it Jocs not
vacate the decree of this Court.
...
A
B
c
D
E
F
G
H
238
SUPREME COURT REPORTS
[1976) 3 S.C.R.
Dismissing th~ appeal by certificate under Article 132(1) and 133(1)(a) to
(c),
HELD : 1. The decree of this Court is not a money decree raising a iudgme?t debt. lt is a declaratory decree declaring that the order compulsorily
retiring the appellant was invalid. The further declaration that he would be
entitled to such benefits as might accrue to him by virtue of the succes'> of the
Writ Petition, was only incidental or anciliary, to the main relief and will fall
or stand with the same.
[242 G-H]
•
2. The distinction between a Legislative act and a Judicial act is well known
though in some s-pecific instances the line which separates one category from the
other !f13V not he easily discernible. Adjudication of the rights of the parties
accC?rd1ng to Jaw enacted by the Legislature is a judicial function.
It is for the
Legislature to lay down the law, prescribing norms of conduct which v.·iU govern
part~cs and transactions and to require the court to give effect to that law. The
Legislature ca1?-not br a. ~are d~c.laration, without more, directly overrule, reverse or overnde a Judicial dec1s1on. It may at any time in exercise of the
plenary po,vers conferred on it by Articles 245 and 246 of the Constitution
render. a j_udicial decision ineffective by enacting a. valid law on a topic within
1~ leg1slative ~e!d, fundamentally altering or changing with retrospective curative or neu~rahs1ng effect the conditions on which
such decision
is~ based.
Judgments rn Indira Nehru Gandhi v. Raj Narain [1976] 2 S.C.R. 347
and
Harl Si111th v. Military Estate Officer, [1973] 1 S.C:R. 516 followed. [243 A-Dl
3.
Jn enacting the impugned Act the State Legislature derives its competence not only from Article 309 but also from Entry 41 of List II of the Seventh
Schedule. It is \Vell settled that the entries in these legislative lists are to be construed in their wide~t possible amplitude and each general word used in tiuch
entries must be held to comprehend anciliary or subsidiary niatters.
The Le,gisJature has legislative competence not only to change the service conditions of
Civil Servants \vith retrospective effect but also to validate with retroactive force
invalid executive orders retiring the servant~ because such validating legislation
must be regarded as subsidiary or anciliary to the power of legislation on the
subiect covered by Entry 41.
1245 A-Dl
4.
The in1pugned Act by introducing a legal fiction on giving the
said
memorandum statutory status with effect from its inception, effectively cures the
defects from which this Memorandum and the orders of retirement made thereunder were suffering.
Thus the said legislation removes or cures the d~fcct
which this Court found in the Memorandum which was the basis of the impugned orders of retirement. [246 A-Bl
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 131 of 1971
and 350 of 1971.
(From the Judgments and Orders dated 2-5-1970 of the Madhya
Prade;h High Court in Misc. Petitions Nos. 504 and 92
of
1967
respectively).
G. L. Sanghi, Bishamber Lal and M. lyngar for the Appellant
(In CA 131/71).
· M. N. Phadke, S. S. Khanduja for the Appellant (In CA 350/71).
l. N. Shroff for the Respondent (In both appeals).
The Judgment of the Court was delivered by
SARKARIA, J. This appeal on certificate is directed against a judgment of the Madhya Pradesh High Court dismissing the Appellant's
writ petition under Art. 226 of the Constitution.
')
I. N. SAKSENA v. M. p, STATE (Sarkaria, !.)
239
The appellant joined the service of the State Government as
a
A
subordinate Judge in the year 1936.
On promotion, he was confirmed as District and Sessions Judge with effect from December 2, 1957.
The appellant attained the age of 55 years on August 22, 1965 which
was the age of superannuation according to Fundamental Ruic
56
(Ch. IX) governing the Civil Services of the State. But prior to that
on February 28, 1963, by a memorandum No. 433-259-1 (iii) /63, the
State Government raised the age of compulsory retirement for governB
ment servants to 5 8 years subject to certain exceptions.
The material
part of the memorandum dated February 28, 1963, read as follows :
"5. Notwithstanding anything contained in the foregoing
paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years
on 3 months notice without assigning any reasons ....... .
A Government servant may also· after attaining the age
of 55 years voluntarily retire after giving 3 months notice
to the appointing authority.
6. These orders will have effect from the !st
March
1963.
7. Necessary amendments to the State Civil Service Regulations will be issued in due course."
Thereafter, by Government Notification dated November 29, 1963,
F. R. 56 was amended on December 6, 1963 in exercise of the power
under the Proviso to Article 309 of the Constitution, raising the age
of compulsory retirement of the State Civil Servants to 58 years with
effect from March !, 1963 but the clause in the aforesaid Memorandum, empowering the Go,vernment to retire servants above the age
of 55 years by giving them three months' notice was not incorporated
in the Rule.
In view of this memorandum, the appellant was allowed to continue
in office after he had attained the age of 55 years.
On September 11, 1963, the respondent passed an order retiring
the appellant from service with effect from December 31, 1963. To
impugn this order, the appellant filed a Writ Petition in the High Court
under Art. 226 of the Constitution on the ground that F. R. 56 as it
stood a[ter the amendment of November 29, 1963, (published
on
6-12-1963) did not contain any provision authorising the respondent
to retire the appellant after the attainment of 55 years of age and that
his retirement was contrary to Art. 311 (2) and Art. 14 of the Constitution.
The High Court dismissed the writ petition by its judgment
dated April 30, 1964.
The appellant came up in appeal to this Court. During the pcndency of that appeal Saksena attained the age of 5 8 years.
By its
judgment dated January 23, 1967, this Court quashed the impugned
order of retirement holding that :
"The appellant will be deemed to have continued in the
service of the Government in spite of that order. As, however, the appellant attained the age of 58 years, in August,
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240
SUPREME COURT REPORTS
[1976] 3 S.C.R.
1966, it is not possible now to direct that he should be put
back in service. But he will be entitled to such benefits as
may accrue now to him by virtue of the success of the writ
petition. The appellant will get his costs from
the State
throughout."
Before the decision of that appeal (Civil Appeal No. 670 of 1965)
however, the Governor had promulgated the Madhya Pradesh (Age of
Compulsory Retirement) Rules, 1965 under Art. 309 of the Constitution. These Rules were published in the Government Gazette of July
17, 1965. By a deeming clanse, these Rules were made effective from
March 1, 1963. The age of retirement was thereby raised to 58 years
and under r. 6 thereof, the appointing authority was empowered to
retire a Government Servant on his attaining the age of SS year< on 3
months' notice without assigning any reason.
By r. 8, the aforesaid
memorandum, dated February 28. l 963, was cancelled, and it was
provided that notwithstanding the cancellation of that memorandum
anything done or any action taken in pμrsuance of the directions contained in that memorandum shall be and shall always be deemed to
have been done or to have been taken under the relevant provisions
of these Rules.
At the hearing of the earlier appeal, these Rules were not brought
to the notice of this Court.
On February 10, 1967, after the judgment by this Court, the State
promulgated an Ordinance which was replaced on April 20, 1963 by
the Madhya Pradesh Shaskiya Scvak Anivarya Sevanivitrika VidhiE
manyatakaran Vidyayaktakaran Vidycyak Adhiniyam 1967 (Act 5 of
1967) validating the retirement of certain Government servants, including that of the appellant, despite the judgment of this Court.
Uy virtue of this Act, the State is vested with a right not to pay the
I
dues o[ the appellant from the date of his retirement (December 3,
Ii.
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1963) onwards.
Sections 2 and 5 of the Act, which arc material for our purpose,
read as follows :
"2. ( 1) The Madhya Pradesh
(Age
of Compulsory
Retirement) Rules, 1965 replacing the provisions of the
Government of Madhya Pradesh
General
Administration
· Department Memorandum No. 1433-258-1 (iii) /63,
dated
the 28th February 1963 (hereinafter referred to as the Memorandum) shall be deemed to have come into force with effect
from the 1st March 1963.
(2) Anything done or any action taken in pursuance of
the directions contained in the memorandum shall be and
shall always be deemed to have been done or taken under
corresponding provisions of the aforesaid rules as if
the
aforesaid rules were in force on the date on which such thing
was done or action was taken and shall now be called into
r
,_
')
I. N. SAKSENA v. M. P. STATE (Sarkaria, !.)
241
question in any court on the ground that the provisions of the
memorandum were not issued in the form of rules made by
the Governor of Madhya Pradesh under Art. 309' of
the
Constitution and coul~ not therefore regulate the conditions
of service of Government servai:its serving
in
connection
with the affairs of the State."
"5. Notwithstanding any judgment, decree or order of
any Court, all Government servants serving in connection
with the affairs of the State who were compulsorily retired or
purported to have been compulsorily retired in accordance
with the memorandum as replaced by the Madhya Pradesh
(Age of Compulsory Retirement) Rules, 1965 referred lo in
Section 2 during the period beginning with !st March, 1965
and ending on 15th July, 1965 shall be and shall aJways be
deemed to have been validly retired in accordance with the
condition of service applicable to them at the relevant time
as if the provisions of Sections 2 and 3 had been in force
at all material time when such retirement was ordered, as
accordingly :
(a) all notices served on such Government servants after
their completion of age of 55 years shall be deemed
to be and to have been issued in accordance with the
rules governing their conditions of service;
( b) no suit or other proceedings shall be
maintained
or continued in any Court for any amount whatsoever
as a payment towards salary for the period beginning
with the date on which a Government servant had
been compulsorily retired and ending on the date of
his attainment of age of 58 years.
( c) no court shall enforce any decree or order directing
the payment of any such amount referred to in
clause (b) above."
In substance, and effect, this Act has made provisions of the Compulsorily Retirement Rules, 1965 applicable from March 1, 1963.
On November 10, 1967, the appellant again moved the High
Court by a writ petition ont of which the present appeal has arisen,
challenging the validity of this Act, particularly of sections 2 and 5
extracted a hove.
Four contentions were raised by him before the High Court : ( 1)
that the Act has been passed to over-rule the decision of the Supreme
Court which the Icgislaturn has no power to do; (2) that the statement
of Objects and Reasons attached to the Bill when it was introduced,
indicates that its main object was to avoid financial burden
which
would fall on the State on account of its having to pay arrears of pension etc. to a large number of officers who had been retired under the
said memorandum which was treated to be a rule and which
the
Supreme Court held was not an effective rule but merely an executive
instruction :
( 3) that the matter having once been decided by the
Supreme Court, was barred by the prh1ciple of res judicata and ( 4)
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242
SUPREME COURT REPORTS
[1976] 3 S.C.R.
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that the Rules give naked power to the authorities fu relire any emB
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11
ployee after he has attained the age of 55 years by giving him three
\
months' notice, and provide no guidelines for the
exercise
of this
power.
'
Tbc High Court negatived these contentions, dismissed the writ
petition but granted a certificate under Art. 132 (I) and 133(1)(a)
to ( c) of the Constitution.
Hence this appeal.
The contentions advanced before the High Court have been
repeated before us with amplification and addition.
It is argued on behalf of the appellant : (i) that a right of property, being a judgment-debt, protected by Article 19 ( 1) ( f) of
the
Constitution, had been created by this Court's decree dated January 30,
1967 in favour of the appellant and against the State. Since the
impugned Act in effect, seeks to expropriate the appellant of that right
without providing for any compensation, it is ultra vires Article 31 (2)
of the Constitution, (ii) The impugned Act is ultra vires the Constitution inasmuch as it seeks to validate the retirement of the appcllaat,
and others like him, by changing their service conditions with retrospective effect.
In so doing, the State legislature has overstepped the
limits of legislative powers conferred on it by Article 309 of the Constitution.
Reliance has been placed on the decision of this Court in
The Sta:e of Mysore v. Padamanabhacharya etc. (1) (iii) The impugned Act encroaches upon the judicial field inasmuch as it over-rules and
makes unenforceable the decision, dated January 30, 1967 of
this
Court in Civil Appeal No. 670 of 1963 and in so doing. it vffcnds
Article 141. 142 and 144 of the Constitution, (iv) Even if the impugned Act is valid, els. (b) and ( c) of s. 5 of the Act, on a proper con-
~truction, do not vacate the decree of this Court, requiring the respondent to pay to the appellant the pecuniary benefits resulting from the
success of his earlier ·appeal (C. A. 670/65) in this Court.
Clause
( b) of s. 5 merely bars the maintenance or continuation of any proceeding for any amount as a payment towards salary.
The appellant is
not seeking to maintain or continue any execution proceeding in court,
for the re~ovcry of any amount towards salary, the decree being a
declaratory one.
None of these contentions apcars to be tenable.
A perusal of this Court's decree, dated January 30, 1967, (extracted above) would show that it is not a money decree, raising a judgment-debt. It is a declaratory decree, declaring that the respondents'
order, dated September 11, 1963, compulsorily retiring the appellant
was invalid, and consequently the appellant would be deemed to have
continued in service till he attained the age of 58 years. The further
declaration thac "he will be entitled to such benefits as may accrue to
him ~y virluc of the success of the writ petition" was only incidental
or ancilliary to the main relief and will fall or stand with the same.
This being the position, the decree did not create an indefeasible right
[1966] I S.CR. 494.
r
[. N. SAKSENA v. M. P. STATE (Sarkaria, J.)
243
of property in favour of the appellant. We therefore do not find any
A
substance in the argument that the impugned Act seeks to acquire
without payment of compensation property vesting in the appellant and
is consequently unconstitutional.
The distinction be\ween a "legislative" act and a "judicial" act is
I
well known, though in some specific instances the line which separates
..
one category from the other may not be easily discernible.
AdjudiB
cation of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function, the
court interprets and gives effect to the intent and mandate
of the
legisbturc as embodied in the statute.
On the other hand, it is for
the kgislaturc to lay down the law, prescribing norms of conduct which -
will .govern parties and transactions and to require the court to give
effect to that law.
c
While, in view of this distinction between legislative and judicial
functions, the legislature cannot by a bare declaration, without more,
directly over-rule, reverse or over-ride a judicial decision, it may, at any
time ii; exercise of the plenary powers conferred on it by Article 245
and 246 of the Constitution render a judicial decision ineffective by
enacting a valid law on a topic within its legislative field fundamentally
altering or changing with retrospective, curative or neutralising effect
the conditions on which such decision is based.
As pointed out by
Ray CJ. in Indira Nehru Gandhi v. Raj Narain,( 1) the rendering inctfcctive o~ judgments or orders of competent courts and tribunals by
changin.; their basis by legislative enactment is a well-known pattern
of all validating Acts.
Such validating legislation which removes the
causes for ineffectiveness or invalidity of actions or proceedings is not
an t:ncroachment on judicial power.
In llari Singh v. Military Estate Officer,(') a Bench of
seven
learned Judges of this Court laid down that the validity of a validating
law is to be judged by two tests. Firstly, whether the legislature possesses competence over the subject matter, and, secondly, whether by
validation the legislature has removed the defect which the courts had
found in the previous law. To these we may add a third : Whether it
is consistent with the provisions of Part III of the Constitution.
We have noticed already, that the impugned provisions do not
offencd Articles 19 and 31 or anything else in Part III of the Constitution.
We may now see whether the provisions in question satisfy the first
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two tests.
G
Mr. Sanghi's argument is that by virtue of the power conferred by
Article 309, the State Legislature is not competent to pass a law
validating retrospectively an invalid order of retirement of a State civi I
servant, made by the State Government, or render ineffective a decree
of this Court declaring invalid such an order.
The point sought to be
made out is that the legislative power conferred on the State legislature by Article 309, is confined to regulating the recruitment and conH
ditions of service of the persons appointed to public services of the
--
---·----
(1) [1976 2 S.C.R. 347.
(2) [1973] 1 S.C.R. 516.
244
SUPREME COURT REPORTS
[ J 976] 3 S.C.R.
A
State, and that the impugned provisions not being such regulatory provisions, arc ultra vires Article 309.
Jn Pmbl!l/110bhacharya's case (supra), which is the sheet anchor
of this contention, the Court was considering the scope of Article 309
in the context of Rule 294(a) Note 4, of the Mysore Service Regulations.
There, the respondent was a teacher in a Government School.
B
He was ordered to be retired from service with effect from February 3,
1958 on attaining the age of 55 years. He challenged the validity of
the order by a writ petition under Article 226 in the High Court and
contended that rule 294 (a) having been amended in April 1955, the
normal age of superannuation was fixed at 58 years,
instead of 55
years.
On behalf of the State, it was canvassed that a notification of
the Governor under Article 309 of the Constitution, issued on March
C
25, 1959 had validated the action taken in retiring the
respondent,
and others upon their attaining the age of 5 5 years.
\
Wanchoo J.
(as he then was), speaking for this Court held that
such a rule cannot be made under the proviso to Article 309 of the
~
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Constitution, but was cautious enough to add :
''We are expressing no opinion as to the power of the
legislature to make a retrospective provision under Article
309 of the Constitution wherein the appropriate legislature
has been given the power to regulate the recruitment and
conditions of service of persons appointed to public service
and posts in connection with the affairs of the Union or of
any State by passing Acts under Art. 309 of the Constitution read with item 70 of List I of the Seventh Schedule or
item 41 of List 1I of the Seventh Schedule.
The present
rule has been made by the Governor under the proviso to
Art. 309. That proviso lays down that it shall be competent
for the Governor or such person as he may direct in the
case of services ~nd posts in connection with the affairs of
the State to make rules regulating the_ recruitment, and the
conditions of service of per_sons appointed, to such services
and posts until provision in that behalf is made by or under
an Act by the appropriate legislature. Under the proviso the
Governor has the power to make rules regulating the recruitment and conditions of service of persons appointed to such
services and posts in connection with the affairs of the State.
The question is whether the notification of March 25, 1959
can be said to be $Uch a rule. We are of opinion that this
notification cannot be said to be a rule regulating the recruitment and conditions of service of persons appointed to the
services and posts in connection with the
affairs
of the
State."
From what has been quoted above, it is clear that this Court
advisedly did not express any opinion about the competency of the
appropriate legislature to enact validating provisions of this type concerning the public servants serving in connection with the affairs of the
State or the Central Government, as the case may be.
'
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I. N. SAKSENA v. M. P. STATE (Sarkaria, J.)
245
It is noteworthy that in enacting the impugned Act,
the State
legislature derives its competence not only from Article 309, but also
from Entry 41 of List II of the Seventh Schedule. Indeed, within its
allotted sphere, that is, with respect to any of the matters enumerated
in List II of the Seventh Schedule the State legislature has, by virtue
of Art. 246(3), exclusive, plenary powers of legislation.
Entry 41 , List II, reads as under :
"41. State public services; State Public Service Commission."
It is well settled that the entries in these legislative lists in Schedule
VII are to be construed in their widest possible amplitude, and each
general word used in such Entries must be held to comprehend ancillary or subsidiary matters. Thus considered, it is clear that the scope
of Entry 41 is wider than the matter of regulating the recruitment and
conditions of service of public servants under Article 309.
The area
of legislative competence defined by Entry 41 is far more comprehensive than that covered by the proviso to Article 309.
By virtne of
Articles 246, 309 and read with Entry 41, List II, therefore, the State
legislature had legislative competence not only to change the service
conditions of State Civil Servants with retrospective effect but also to
validate with retrospective force invalid executive orders retiring the
servants, because such validating legislation must be regarded as subsidiary or ancillary to the power of legislation on the snhject covered
by Entry 41.
Thus the impugned provisions satisfy the first test.
This takes us
to the second test, whether the impugned legislation removes or cures
the defect which this Court had found in the Memorandum which was
the basis of the impugned orders of retirement.
For reasons
that
follow, the answer to this question also must be in the affirmative.
A
B
c
D
E
The basis of this Court's decision dated January 30, 1967 in Civil
Appeal 670 of 1965 was that the Government Memorandum dated
Febrnary 28, 1963, in pursuance of which the · impugned order of
F
retirement of I. N. Saksena had been passed on September 11, 1963,
had not attained the status of a statutory rule framed under the proviso
to Article 309 of the Constitution, but was merely an
administrative
instruction.
This provision in the Memorandum
empowering the
Government to retire a servant on his attaining the age of 55 years,
after three months notice, was not incorporated in the statutory rules.
On the other hand the amendment made with effect from March J 963
G
in Fundamental Rule 56, in exercise of its powers under Article 309
by the Government under notification dated December 6, 1963, had
raised the age of retirement for State Government servants from 55 to
58 years. I. N. Saksena had therefore, by virtue of this
amended
statutory rule a right to remain in service upto the age of 58 years.
This right could not be taken away by mere executive instructions embodied in the Memorandum.
H
Madhya Pradesh Act 5 of 1963 gives the said Memorandum the
statutory status with effect from its very inception.
By introducing
246
SUPREME COURT REPORTS
[1976] 3 S.C.R.
A
a legal fiction the Act effectively cures tlie defect from which this
Mcm1)randum and the orciers of retirement made
thereunder were
suffering.
B
c
D
E
F
G
Thus the second test was also satisfied. The conclusion is therefore inescapable that the impugned provisions were valid. Hence, the
order, dated September 11, 1963, of Saksena's compulsory retirement
became valid as the basis of this Court's judgment dated January 30,
1967 was removed.
There is no force in the fourth contention of Mr. Sanghi. Section
5, particularly Clauses (b) and (c), effectively vacate the
p>cvious
decree of this Court in favour of Saksena. For removing doubts, these
clauses declare that this Court's decree will not be enforceable by
initiating proceedings in any court thereon, in future.
In the light of the above discussion, it is abundantly clear that in
enacting the impugned provisions, the legislature has not exceeded the
limits of its legislative powers nor encroached on the judicial field.
We will close the discussion by noticing on.ly one decision out of the
many that had been cited at the bar.
In Piare Dusada and Ors. v. The King Emperor,(1) the Governor- ·
General by Ordinance repealed the Special Criminal Courts Ordinance
II of 1942. There was a provision in the repealing Ordinance for confirmation and continuance of sentences of Special Courts and retrial of
pending case. The appellant therein had been convicted and sentenced
by Special Criminal Court which was held to have no jurisdiction to try
the case by an order of a court. S.cction 3 (1) of the Special Criminal
Courts (Repeal) Ordinance, 1943 conferred validity and full effectiveness on sentences passed by Special Criminal Conrts by conferring
jurisdiction on them with retrospective effect. The Federal Court held
that by promulgating the validating and repealing Ordinacc of 1943.
the legislative authority had not attempted to do indirectly what
it
could not do directly or to exercise judicial power in the guise of
legislation. It was further held that the Ordinance was not invalid on
the ground that the legislative authority had validated by retrospective
legislation proceedings held in courts which were void for want of
jurisdiction as there was nothing in the Indian Constitution which precluded the legislature from doing so.
The ratio of the above decision applies with greater force to the
present case.
For all the foregoing reasons, we negative all the contentions canvassed by Mr. Sanghi and dismiss this appeal leaving the parties to
bear thc.ir own costs.
Civil Appeal No. 350 of 1971
SARKARIA, J.
For the reasons recorded in Civil Appeal No. 131
of 1971 entitled l. N. Saksena v. State of Madhya Pradesh, this appeal
fails and is dismissed without any order as to costs.
H
P.H.P.
Appeals dismissed.
(I) [1944] F.C.R. 61.
'
•
.I
(