# [1997] Supp. 2 S.C.R. 507

- **Citation:** [1997] Supp. 2 S.C.R. 507
- **Court:** Supreme Court of India
- **Decided:** 1997-07-11
- **Bench:** K. Ramaswamy, S. Saghir Ahmad B, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1997-supp-2-s-c-r-507-16141
- **Pages:** 186

## Headnote

Constitution of India, 1950 :
A1ticles 245, 246 and 309, Seventh Schedule, List II, Ently 41-State c
Legislature-Power to enact laws rendering judicial decisions ineffective-Held, Legislature is empowered to render a judicial decisio11 i11effective
by enacting valid law within its legislative field fu11dame11tally altering or
changing the basis upon which the judicial decision was given-But Legislature in exercise of its powers under Altic/es 245 and 246 ca11 not merely
declare a decision of a coult of law to be invalid or to be inopera- D
tive-Haryana Se1Vice of Engineers Class-I, Public Works Depaltment (Buildings and Roads Branch, Public Health Branch and lnigation Branch) Act,
1995 is valid except a pa1t of s. 25 thereof-Besides, the Act is not a validation
Act since the Coult in the earlier decisions, had not invalidated any provision
•
but merely inte1preted the relevant provisions of the Rules-Validation
Act-Constitution of India-Alticles 32, 226-Judicial Review-AdministraE
tive Law.
Se1vice Law :
Ha1yana Se1vice of Engineers Class I Public Works Depa1tment (BuildF
ings and Roads Branch), (Public Health Branch) and (Inigation Branch)
Respectively Act, 1995--ss. 5(2), 2(12)(c) a11d 12(2~Harya11a Se1Vice of
Engineers Class I Public Works Depwtme11t-Promotio11 tO--Criteria for
promotion of direct recmits and promotees-Retrmpective operatio11 to the
Act-Held, valid-To have a palticular position in seniodty list in a cadre is
not a11 accmed or vested right-Losing some steps in se11iority list withi11 a G
cadre and future chances of promotion getting delayed thereby is not reduction
___..,
in rank-State Govemment to prepare seniority list afresh in accordance with
the Act.
s. 25-Repealing provision-&.pressio11 'to the extent that these Rules
shall conti11ue to apply to the persons, who were members of the se1vice before H
507
508
SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.
A 1st day of November, 1966' is invalid and is strnck dowit-Remaining part of
the section and the proviso will remain operative-f'unjab service of Engineers, Class-I, Public Works Department (Roads & Building Branch) Rules,
1960, Punjab Service of Engineers Class-I Public Works Department (Public
Health Branch) Rules, 1961 and the Punjab Service of Engineers Class-I
Public Works Department (Irrigation Branch) Rules, 1964.
B
Interpretation of Statutes :
Statement of Objects and Reasons of a statute-Held, is to be looked
into as an extrinsic aid to find out legislative intent when meaning of statute
C by its ordinary language is obscure or ambiguous and not when words of
statute are clear and unambiguous.
Principle of casus omissus-Applicability of
In the State of Haryana, on its formation on 1.11.1986, the servii;es of
D Class I Engineers in three Branches of Public Works Department, namely,
Roads and Buildings Branch, Public Health Branch, and Irrigation Branch,
were regulated by the Punjab Service of Engineers, Class I Public Works
Department (Roads and Buildings Branch) Rules, 1960, the Punjab Service
of Engineers Class I Public Works Department (Public Health Branch)
Rules, 1961, and the Punjab Service of Engineers, Class I Public Works
E Department (Irrigation Branch) Rules, 1964, respectively. Class I service of
Engineers consisted of Executive Engineers, Superintending Engiueers,
Chief Engineer and later Engineer-in- Chief also in the respective branches.
Assistant Executive Engineers and posts of Class II Subordinate Service
both were feeder channels for appointment by promotion as Executive
F Engineers, the former being direct recruits and the latter were promotees
from the Subordinate Service. In the Roads and Buildings Branch and the
Public Health Branch 50% posts in Class I service were filled by promotees
and 50% posts by direct recruit Assistant Executive Engineers. But as
regards the Irrigation Branch till 8 years of framing of the Rules 75% posts
G were filled by promotees and 25% by direct recruits and thereafter the posts
were to be filled

## Text

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S.S. BOLA AND ORS. ETC.
A
,..
v.
B.D. SARDANA AND ORS. ETC.
JULY 11, 1997
(K. RAMASWAMY, S. SAGHIR AHMAD
B
AND G.B. PATTANAIK, JJ.]
Constitution of India, 1950 :
A1ticles 245, 246 and 309, Seventh Schedule, List II, Ently 41-State c
Legislature-Power to enact laws rendering judicial decisions ineffective-Held, Legislature is empowered to render a judicial decisio11 i11effective
by enacting valid law within its legislative field fu11dame11tally altering or
changing the basis upon which the judicial decision was given-But Legislature in exercise of its powers under Altic/es 245 and 246 ca11 not merely
declare a decision of a coult of law to be invalid or to be inopera- D
tive-Haryana Se1Vice of Engineers Class-I, Public Works Depaltment (Buildings and Roads Branch, Public Health Branch and lnigation Branch) Act,
1995 is valid except a pa1t of s. 25 thereof-Besides, the Act is not a validation
Act since the Coult in the earlier decisions, had not invalidated any provision
•
but merely inte1preted the relevant provisions of the Rules-Validation
Act-Constitution of India-Alticles 32, 226-Judicial Review-AdministraE
tive Law.
Se1vice Law :
Ha1yana Se1vice of Engineers Class I Public Works Depa1tment (BuildF
ings and Roads Branch), (Public Health Branch) and (Inigation Branch)
Respectively Act, 1995--ss. 5(2), 2(12)(c) a11d 12(2~Harya11a Se1Vice of
Engineers Class I Public Works Depwtme11t-Promotio11 tO--Criteria for
promotion of direct recmits and promotees-Retrmpective operatio11 to the
Act-Held, valid-To have a palticular position in seniodty list in a cadre is
not a11 accmed or vested right-Losing some steps in se11iority list withi11 a G
cadre and future chances of promotion getting delayed thereby is not reduction
___..,
in rank-State Govemment to prepare seniority list afresh in accordance with
the Act.
s. 25-Repealing provision-&.pressio11 'to the extent that these Rules
shall conti11ue to apply to the persons, who were members of the se1vice before H
507
508
SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.
A 1st day of November, 1966' is invalid and is strnck dowit-Remaining part of
the section and the proviso will remain operative-f'unjab service of Engineers, Class-I, Public Works Department (Roads & Building Branch) Rules,
1960, Punjab Service of Engineers Class-I Public Works Department (Public
Health Branch) Rules, 1961 and the Punjab Service of Engineers Class-I
Public Works Department (Irrigation Branch) Rules, 1964.
B
Interpretation of Statutes :
Statement of Objects and Reasons of a statute-Held, is to be looked
into as an extrinsic aid to find out legislative intent when meaning of statute
C by its ordinary language is obscure or ambiguous and not when words of
statute are clear and unambiguous.
Principle of casus omissus-Applicability of
In the State of Haryana, on its formation on 1.11.1986, the servii;es of
D Class I Engineers in three Branches of Public Works Department, namely,
Roads and Buildings Branch, Public Health Branch, and Irrigation Branch,
were regulated by the Punjab Service of Engineers, Class I Public Works
Department (Roads and Buildings Branch) Rules, 1960, the Punjab Service
of Engineers Class I Public Works Department (Public Health Branch)
Rules, 1961, and the Punjab Service of Engineers, Class I Public Works
E Department (Irrigation Branch) Rules, 1964, respectively. Class I service of
Engineers consisted of Executive Engineers, Superintending Engiueers,
Chief Engineer and later Engineer-in- Chief also in the respective branches.
Assistant Executive Engineers and posts of Class II Subordinate Service
both were feeder channels for appointment by promotion as Executive
F Engineers, the former being direct recruits and the latter were promotees
from the Subordinate Service. In the Roads and Buildings Branch and the
Public Health Branch 50% posts in Class I service were filled by promotees
and 50% posts by direct recruit Assistant Executive Engineers. But as
regards the Irrigation Branch till 8 years of framing of the Rules 75% posts
G were filled by promotees and 25% by direct recruits and thereafter the posts
were to be filled by both the cadres in equal proportion i.e. 50% each. To
begin with, 14 officers of the erstwhile Punjab Cadre of Engineers were
brought in the State of Haryana in Public Health Branch and since the
cadre strength of Haryana was 10, four of them were adjusted against
ex-cadre posts. Though the Rules provided quota for direct recruit and
H promotee officers in the Class I posts, these ten officers were brought on the
(
..
S.S. BOLA v. B.D. SARDANA
509
basis or their domicile and the ratio between direct recruits and promotees A
was not observed.
Later, when the gradation lists were prepared, dispute arose between
direct recruits and promotees of Roads and Buildings Branch and the
Public Health Branch; and writ petitions were filed in the High Court. The B
decisions of the High Court were challenged before this Court. This Court
decided the matter regarding seniority of Roads and Buildings Branch in
the case ofA.N. Sehgal and Others v. Raje Ram Sheoran and Others, [1992]
1 SCC 304 and that relating to Public Health Branch, in S.L. Chopra and
Ors. v. State of Haryana and Others, [1992] Supp. 1 SCC 391. The Court,
after considering Rules 3(1), 3(2), 5(1)(9), 6, 7, 11(1), 12(2) and 12(3) of C
the respectives Rules, held that a direct recruit would always be recruited
and appointed to a substantive vacancy, and from the date he started
discharging the duty he would be a member of the 'service' whereas a
promotee officer, irrespective of initial officiating promotion to a tern·
porary vacancy or substantive vacancy, would become member of the D
'service' on his appointment to a substantive vacancy within the 50% quota
meant for promotee officers. Thus a promotee occupying a post within 50%
quota of direct recruits on their not being available, acquired no right to
the post and would yield to direct recruits though promoted later to the
senior posts i.e. Executive Engineer, Superintending Engineer and Chief E
Engineer. The officiating period of the promotee officer between the date
of initial promotion and the date of availability of the cadre post would
thus ·be rendered fortuitous and stood excluded. This Court interpreted
the relevant provisions of the Rules and directed the Government to
determine the cadre post regularly, from time to time, allot the posts in F
each year of allotment as contemplated under Rule 12 read with Rule
5(2)(a), issue orders appointing the officers substantively to the respective
posts within the quota and determine the inter se seniority between direct
recruits and promotees accordingly.
The State Government, in pursuance of the directions issued by this G
Court, fixed the cadre strength for each year commencing from 1966 and
determined the inter se seniority of the promotees and the direct recruits,
and prepared a seniority list dated 6.4.1992. As regards the initial 10 posts,
which constituted the service initially on 1.11.1966, five were treated as
direct recruits fictionally and five as promotees. Against this seniority list H
510
SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.
A writ petitions were filed in the High Court. The High Court quashed the
list, and aggrieved parties filed petitions for special leave before this
Court.
B
Meanwhile the State Legislature passed the Haryana Service of
Engineers, Class I, Public Works Department (Buildings and Roads
Branch, Public Health Branch and Irrigation Branch) Act, 1995 giving the
Act retrospective effect from 1.11.1966, thus making the decisions of this
Court rendered in Sehgal and Chopra ineffective. The Act was challenged
in writ petitions before the High Court and the said writ petitions were
transferred to this Court. During the pendency of the matters before this
C Court, two other seniority lists were prepared on 13.3.1997 and 19.3.1997
and both these lists were also challenged before this Court.
So far as the Punjab Service of Engineers, Class I, Public Works
Department (Irrigation Branch) Rules, 1964 were concerned, the said rules
D were not considered by this Court earlier. However, the dispute of seniority
between direct recruits and promotees arose in the years 1976 and the
matter was ultimately disposed of by the High Court in Letters Patent
Appeals by its judgment dated 27.8.1992. The State Government as also
the promotee officers challenged the said order in appeals before this
E Court. When the Act came into force, one of the direct recruits challenged
the validity of the Act by filing a writ petition before the High Court. The
said writ petition was also transferred to this Court.
F
It was contended for the direct recruits that the Act was an usurpation of judicial power by the Legislature to annul the judgments of this
Court in Sehgal and Chopra as was clear from the Statement of Objects
and Reasons of the Act, and the affidavit filed on behalf of the State
Government; that the Act merely declared the earlier judgments to be
invalid, and therefore, the Act was invalid and inoperative; that the mandamus issued by this Court in Sehgal and Chopra had to be complied with
G and the State Legislature had no power to make the mandamus ineffective
and to override the said judgments by enacting the Act; and, that in any
case the Legislature could not have given the Act retrospective operation.
It was also contended that the Act took away the rights accrued in favour
of the direct recruits pursuant to the judgment of this Court, and, thereH fore, the Act should be struck down.
\
,.
S.S. BOLA v. B.D. SARDANA
511
The contention on behalf of the State Government and the promotee A
officers was that the State Legislature under Articles 245 and 246 of the
Constitution had power to make the law determining the service conditions
of the employees of the State and giving it retrospective effect; that the
legislature having been aware of the inequitous situation which had been
the result of the Rules for determination of inter se seniority between the B
direct recruits and the promotees as interpreted by this Court in Sehgal
and Chopra, intervened in enacting the Act to remove the inequities not by
merely declaring the interpretation given by this Court to the relevant
provisions of the Rules in the said judgments to be invalid but by making
substantial alterations and changes to the basis itself by altering the
definition of service, by providing that quota of promotees could exceed C
beyond 50% as per proviso to 's. 5(2), and by changing the very criterion
for determination of seniority, namely, the continuous length of service as
engrafted ins. 12(2); and as such the Legislature could not be said to have
encroached upon the field of judiciary nor could the legislation be said to
be an act of usurpation of judicial power by the Legislature.
D
Disposing of the matters, this Court
HELD : per curiam :
(i) Legislature is empowered to render a judicial decision ineffective E
by enacting a valid law fundamentally altering or changing the basis upon
, which the judicial decision was given; such a law can also be given
retrospective operation. But, Legislature cannot declare a decision of a
court of law to be invalid or to be inoperative, in which· case it would be
held to be an exercise of judicial power which the Legislature do not
possess.
(ii) To have a particular position in seniority list is not an accrued
or a vested right. Chances of promotion are not condition of service.
Per majority (Pattanaik and S. Saghir Ahmad, JJ.)
(i) The Haryana Service of Engineers, Class I, Public Works Depart·
ment. (Buildings and Roads Branch), (Public Health Branch) and (Irriga·
tion Branch) Respectively Act. 1995 is valid. The changes and alterations
F
G
in the service rules, brought by the Act and giving the Act retrospective
effect rendered the decisions of this Court in the cases of Sehgal and H
512
. SUPREME COURT REPORTS [1997] SUPP. 2S.C.R.
A Chopra ineffective. It is not a case of Legislature overriding a judicial
decision but a case of rendering a judicial decision ineffective by enacting
a valid law within the competence of the Legislature.
(ii) The nature of mandamus which had been issued by this Court
B in Sehgal and Chopra was merely a declaration of principles of seniority
as the Rules then existing. The Legislature by enacting the Act and giving
it retrospective effect made several vital changes both to the definition of
service as also to criteria for determining inter se seniority between direct
recruits and promotees. The Act has not taken away any accrued right of
the direct recruits.
c
Per Minority (K. Ramaswamy, J.)
(i) The Legislature of Haryana was competent to enact the Haryana
Service of Engineers, Class I, Public Works Department (Buildings and
D Roads, Branch), (Public Health Branch) and Irrigation Branch) Respectively Act, 1995. But since the Act has with retrospective effect, in substance
and in effect, declared the law laid down by this Court in Sehgal and Chopra
as unenforceable by an indirect side track process of legislative fiat, it is
unconstitutional. The Act is unconstitutional to the extent of its ret.rospective operation. The prospective effect does not have any effect on settled
E rights of the parties to these litigations.
(ii) The relevant Rules as interpreted by this Court in Sehgal and
Chopra is the law under Article 141 of the Constitution. The mandamus
issued therein operates inter parties and binds the State Government. The
F Act made with retrospective effect is a fraud on the Constitution and is,
therefore, unconstitutional. It, therefore, does not affect the vested rights
of the direct recruits which are still available to them and they are entitled
to have their seniority determined accordingly.
G
Per Pattanaik, J.
1. The Haryana Service of Engineers Class I, Public Works Department, (Buildings and Roads, Branch), (Public Health Branch) and (Irrigation Branch) Respectively Act, 1995, is a valid piece of legislation enacted
by the State Legislature over which they had legislative competence under
H Article 309 and Entry 41 of List II of Vllth Schedule to the Constitution.
S.S. BOLA v. B.D. SARDANA
513
Though by giving the enactment retrospective effect the earlier judgments A
of this Court in Sehgal * and Chopra ** have become ineffective, this does
not tantambunt to a mere declaration of invalidity of an earlier judgment
nor does it amount to an encroachment by the Legislature into the judicial
sphere. The Act cannot be said to be an act of usurpation of judicial power
by the Legislature. (560-D-E; 575-H; 576-A]
B
* A.N. Sehgal and Ors. v. Raje Ram Sheoran and Ors., (1992) Supp.
1 SCC 304 and **S.L. Chopra a~id Ors. v. State of Haryana and Ors., (1992)
Supp. 1 SCC 391, referred to.
2.1. The Legislature can always render a judicial decision ineffective c
by enacting valid law on the topic within its legislative field fundamentally
...
altering or changing its character retrospectively. But the Legislature
cannot in exercise of its plenary power under Articles 245 and 246 of the
Constitution merely declare a decision of a court of law to be invalid or to
be inoperative in which case it would be held to be an exercise of judicial D
power, which under the scheme of Constitution, the Legislature do not
possess. (543-A-C]
•
Indian Aluminium Co. and Ors. v. State of Kerala and Ors., [1996) 7
SCC 637; J.N. Saxena v. The State of Madhya Pradesh, [1976) 3 SCR 237;
E
M/s. Utkal Contractors and Joinery (P) Ltd. and Ors. v. State of Orissa, (1987)
Supp. SCC 751; Bhubaneshwar Singh and Anr. v. Union of India and Ors.,
(1994) 6 SCC 77; Comorin Match Industries (P) Ltd. v. State of Tamil Nadu,
(1998] 4 SCC 281; Meernt Development Authority and Ors.etc. v. Satbir Singh
and Ors. etc., [1996) 11 SCC 462 and State of Orissa and Anr. v. Gopal
Chandra Rath and Ors., (1995) 6 SCC 242, relied on.
F
Shri P. C. Mills Ltd. v. Broach Borough Municipality, [1969) 2 SCC 283;
West Ramnad Electric Distribution Company Ltd. v. State of Madras, [1963)
2 SCR 747; Udai Ram Shanna and Ors. etc. v. Union of India and Ors.,
[1968) 3 SCR 41; Krishan Chandra Gangopadhyaya and Ors. v. Union of G
India and Ors., [1975) 2 SCC 302 and Hindustan Gum and Chemicals Ltd.
v. State of Haryana and Ors., [1985) 4 SCC 124, cited.
Pritpal Singh and Ors. v. State of Punjab and Ors., [1980] Suppl. SCC
524; State of Gujarat & Anr. etc. v. Raman Lal Keshav Lal Soni and Ors.
etc., [1983) 2 SCC 33; Ex. Capt. KC. Arora a11dA11r. v.State of Haryana and H
514
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A Ors., [1984] 3 SCC 281; T.R. Kapur and Ors. v. State of Haryana and Ors.,
[1986] Suppl. SCC 584; P.D. Aggrawal and Ors. v. State of U.P. and Ors.,
[1987] 3 SCC 622 and Madan Mohan Pathak andAnr. etc. v. Union of India
and Ors., [1978] 2 SCC SO, held inapplicable.
2.2. In the case of Sehgal and Chopra this Court had not invalidated
B any provision of the recruitment rules but merely interpreted some
provisions of the Rules for determining. the inter se seniority between the
direct recruits and the promotees. The Act passed by the Legislature,
therefore, is not a validation Act but merely an Act passed by the State
Legislature giving it retrospective effect from the date the State of Haryana
C came into existence and consequently from the date the service in question
came into existence. [542-C-D]
2.3. The power of the Legislature under Article 246(3) of the Constitution to make law for the State with respect to the matters enumerated
D in List II of the Vllth Scheduled to the Constitution is wide enough to
make law determining the service conditions of the employees of the State.
In the instant case, there has been no challenge to the legislative competence of the State Legislature to enact the legislation in question nor has
there been any challenge on the ground of contravention of Part III of the
Constitution. [542-D-E]
E
2.4. Under the constitutional scheme the power of the Legislature to
make law is paramount subject to the field of legislation as enumerated in
the Entries in different Lists. The function of the judiciary is to interpret
the law and to adjudicate the rights of the parties in accordance with law
F made by the Legislature. [ 542-E-F]
G
3.1. To find out whether the impugned Act is an usurpation of
judicial power by the Legislature it would not be permissible to look to the
Statement of Objects and Reasons which accompanied the Bill while
introducing the same on the floor of the Legislature nor the affidavit filed
by an officer of the Government would control the true and correct
meaning of the words of the statute. For that purpose the substantive
provisions of the Act would be examined. [574-E-G]
3.2. It is a cardinal rule of interpretation that Objects and Reasons
H of a statute is to be looked into as an extrinsic aid to find out legislative
S.S. BOLA v. B.D. SARDANA
515
intent only when the meaning of the statute by its ordinary language Is A
obscure or ambiguous. But, if the words used in a statute are clear and
unambiguous then the statute itself declares the intention of the Legisla·
ture and in such a case it would not be permissible for a Court to interpret
the statute by examining the Objects and Reasons of the statute in ques·
tion. The general rule of interpretation Is that the language employed is B
primarily the determining factor to find out the intention of the Legisla·
ture. [545-F ·G; 547-B]
Aswini Kumar Ghosh andAnr. v.Arbinda Bose andAnr., SCR [1953]
-•
1; The Central Bank of India v. Their Workmen, SCR [1960] 200; State of
West Bengal v. Union of India, SCR 1 [1964] 371; Tata Engineering and C
Locomotive Co. Ltd. v. Gram Panchayat, Pimpri Waghere, [1976] 4SCC177
and Kanai/al Sur v. Paramnidhi, Sadhukhan, SCR [1958] 360, relied on.
Robert Wigram Crawford v. Richard Spooner, 4 MIA 179 (PC),
referred to.
D
4.1. The changes and alterations in the Act itself and giving It
retrospective effect from the date when the State of Haryana came into
existence and consequently the service of Engineers, came into existence,
rendered. the earlier decisions of this Court in Sehgal and Chopra ineffec· E
tive. The provisions of the Act and the definition of "service" ins. 2(12)(c),
proviso to s. 5(2) and the criteria for promotion, which was engrafted in
s. 12(2) of the Act, and making it retrospective w.e.f, 1.11.1966, when
interpreted, lead to the only conclusion that this Court could not have
rendered the decision in Sehgal and Chopra on the face of the aforesaid F
provisions of the Act. It is, therefore, not a case of legislation by mere
declaration without anything more, overriding a judicial decision but a
case of rendering a judicial decision ineffective by enacting a· valid law
within the legislative field of the Legislature. [548-G-H; 549·A·B]
4.2. Under the 1960 and the 1961 Rules as interpreted by this Court G
in the cases of Sehgal and Chopra, a direct recruit gets the year of allotment
as the year in which he is recruited as Assistant Executive Engineer but so
far as promotees are concerned they become members of the service only
after they are appointed substantively to a cadre post and the quota of
promotees cannot exceed 50% of the total number of posts in the service H
516
SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.
A excluding the posts of Assistant Executive Engineers to which direct
recruitments are made. Inter se seniority between direct recruits and
promotees is regulated by Rules 12(6) and (7). As a necessary consequence
a direct recruit when promoted as Executive Engineer from the posts of
Assistant Executive Engineer was getting seniority over the promotee
B Executive Engineers and this situation has been avoided by the impugned
Act by changing the definition of "service" in Rule 2(12) of the 1961 Rules,
by providing the quota for promotees to exceed 50% in certain contingen·
cies like non-availability of direct recruits to man the post of Executive
Engineer and by changing the criteria for determination of illter se
C seniority and in place of determination of year of allotment, by providing
length of continuous service to the post of Executive Engineer to be the
determining factor. Necessarily, therefore, by the impugned Act a direct
recruit in the rank of Executive Engineer would come down in the grada·
tion list than what was assigned under the Rules of 1960 and 1961.
D
[561·A·F]
5.1. To have a particular position in the seniority list within a cadre
can not be said to be an accrued or a vested right of a Government servant;
and losing some places in the seniority list within the cadre does not
amount to reduction in rank even though the future chances of promotion
E get delayed thereby. Chances of promotion of Government servant are not
a condition of service. [562·C·E]
The High Court of Calcutta v. Amal Kumar Roy, [1963) 1 SCR 437;
The State of Punjab v. Kishan Das, [1971) 3 SCR 389; State of Maharashtra
and Ahr. v. Chandrakant Anantit Kulkarni and Ors., [1981) 4 SCC 130; K.
F Jagadeesan v. Union of India and Ors., [1990) 2 SCC 228; Union of India .
and Ors. v. S.L. Dutta and Anr., [1991) 1 SCC 505 and Zohrabi v. Arjuna
and Ors., [1980) 2 SCC 203, relied on.
5.2. The direcfrecruits did not have a vested right nor any right had
G accrued in their favour in the matter of getting a particular position in the
seniority list of Executive Engineers under the pre-amended Rules which
is said to have been taken away by the Act. Thus, there is no bar for the
Legislature to amend the law in consequence of which the inter se position
in rank of Executive Engineer might get altered. Consequently, there is no
H invalidity in the enactment of the Act. [563-F-H]
S.S. BOLA v. B.D. SARDANA
517
5.3. The nature of mandamus which had been issued by this Court A
in Sehgal and Chopra was merely a declaration of the principles of seniority
as per 1960 and 1961 Rules and the State Government was to draw up the
seniority list in accordance with the said Rules. The Legislature by enact·
ing the Act and giving it retrospective effect made several vital changes
both in the definition of 'service' as well as in the criteria of determining B
the inter se seniority between the direct recruits and promotees. The Act
has not taken away any accrued rights of the direct recruits. (554-F-H]
Madan Mohan Pathak and Anr. v. Union of India and Ors., (1998] 2
sec so, held inapplicable.
6.1. Though the Act is a valid piece of legislation but s. 25 thereof
cannot be sustained in toto sim:e a plain reading of the said provision does
not make out any meaning. The section repeals the previous Rules as well
c
as the Ordinance of 1995. It purports to indicate that the earlier Rules
would apply to persons who were members of the service before 1.11.1986 D
though a plain reading of the main part of the section does not convey that
meaning. (564-A; 565-A·B]
6.2. The contention that the Court should fill up the gap by applying
the principle of casus omissus and provide the word "except" in the first E
part of s. 25 after the words "to the extent", cannot be accepted. It is not
appropriate to apply the principle of casus omissus, inasmuch as the Act
itself having been given retrospective effect with effect from 1st November,
1966, the date on which the State of Haryana came into existence, there is
no rational to apply the pre-existing rules to those employees who were in F
the service before that date even after the pre-existing Rules are being
repealed by the Act. In this view of the matter, the expression "to the extent
that these rules shall continue to apply to the persons who were members
of the service before 1st day of November, 1966" ins. 25 of the Act is invalid
proviso to the said section will, however, remain operative. (565-C-G]
and is accordingly struck down. Remaining part of s. 25 as well as the
G
7.1. The High Court fell in error to hold that the State Government
was not entitled to re-determine the cadre strength retrospectively every
year and such re-determination is invalid and inoperative. On the other
hand, since the cadre strength had not been determined regularly, though H
518
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A It was enjoined upon the State Government to do so, this had called upon
the State Government to re-determine the cadre strength and thereafter
determine the inter se seniority of the direct recruits and promotees in
terms of Rule 12 of the Recruitment Rules bearing in mind the law laid
down by this Court interpreting the different provisions of the Rules. The
B said conclusion of the High Court is, therefore, quashed. [570-A·C]
7.2. As regards the Irrigation Branch, Rule 2(12)(c) makes a
promotee officer,
on probation or having successfully completed his
probation awaiting appointment to a cadre post, to be a member of the
service which was not the position in the Public Health Branch as well as
C in the Roads and Buildings Branch .. Then again under Rule 5(2) the
percentage of promotees was required to be so regulated as not to exceed
75% of the numbers of posts in the service for the first 8 years from the
date of commencement of the Rules and thereafter it shall not exceed 50%
of ttie number of posts in the service excluding the posts of Assistant
D Executive Engineers. Proviso to the aforesaid rule also entitles the Govern·
ment to grant permission beyond 75% during the first 10 years of the
commencement of the rules and beyond 50% thereafter in case sufficient
number of direct recruit Assistant Executive Engineers are not available
and considered fit for promotion. Rule 12 which deals with the determina·
tion of inter se seniority is also somewhat different than the similar rule
E for the Public Health Branch and the Roads and Building Branch which
had been considered by this Court in the cases of Sehgal and Chopra.
[576-D; 577-A]
F
7.3. The Division Bench of the High Court was not justified in
disposing of the appeal relating to Irrigation Branch, relying upon the
earlier decision of this Court in Sehgal's case. The High Court did not
focus its attention to the difference in the rules meant for the Irrigation
Branch and the Rules meant for the Public Health Branch and Roads and
Buildings Branch. The judgment passed by the Division Bench of the High
Court in L.P.A. Nos. 367 and 411 of 1992 is erroneous and is, therefore,
G set aside. [577·A·CJ
7 .4. The Act, except a part of s. 25, having been declared intra vires
and given retrospective effect with effect from 1.11.1966, the inter se
seniority of direct recruits and promotees in each of the services, namely,
H the Buildings and Roads Branch, the Public Health Branch and the
..
•
S.S. BOLA v. B.D. SARDANA
519
Irrigation Branch will have to be re-drawn up in accordance with the A
provisions of the Act. The seniority lists already drawn up subsequent to
the judgments of this Court in the cases of Sehgal and Chopra as well as
during the pendency of these appeals in this Court are of no consequence
in view of the Act coming into force. [577-D-F]
, Per S. Saghir Ahmad, !. (Concurring) :
B
1.1. Under the scheme of the Constitution, it is competent for the
Legislature to put an end to the finality of a judicial decision and, therefore, it would be competent for the Legislature to render ineffective the
judgment of the court by changing the basis of the Ac.t upon which that C
judgment was founded. The power to make a law includes the power to give
it retrospective effect subject to the restriction imposed by Article 20(1) of
the Constitution that a Legislature cannot make retrospective penal laws.
It would be valid for the Legislature to make any other enactment with
retrospective effect provided no fundamental right is infringed by reason D
of its taking away the vested right. [578-G-H; 579-A]
Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality
& Ors., [1970] 1 SCR 388 = [1969] 2 SCC 283; In re: Cauvery Water
Disputes Tribunal, AIR (1992) SC 522 = [1993] Supp. 1 SCC 96 a11d E
Bhubaneshwar Singh v. Union of India, [1994] 6 SCC 77, relied on.
Madan Mohan Pathak v. Union of India & Ors., [1978] 3 SCR 334 =
[1978] 2 sec 50, referred to.
1.2. To declare what the law is or has been is a judicial power. To F
declare what the law shall be is a legislative power. It would be within the
exclusive domain of judiciary to expound the law as it is and not to
speculate what it should be as it is the function of the Legislature. It is
also within the exclusive power of the judiciary to hold that a Statute
passed by the Legislature is ultra vires. The Legislature in that situation G
does not become a helpless creature as it continues to remain a living pillar
of a living Constitution. Though it cannot directly override the judicial
decision, it retains the plenary powers under Articles 245, 246 and 248 of
the Constitution to alter the law as settled or declared by judicial
decisions. [578-8-E]
H
520
SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.
A
Mis. Anwar Khan Mahboob Co. v. State of Madhya Pradesh, (1966] 2
B
SCR 40, relied on.
Finn CJ. Patel & Co. & Ors. v. The State of Madhya Pradesh, AIR
(1953) SC 108, already overruled.
2.1. The Legislature can also validate an Act which was declared
invalid by the Court or amend it with retrospective effect so as to remove
the grounds of its invalidity. [578-F)
Rai Ramklishna & Ors. v. State of Bihar, [1964) 1 SCR 897 and Mt.
C Jadao Bahuji v. Municipal Committee, Khandwa & Anr., AIR (1961) SC
1486, relied on.
2.2. Where, however, the statutory provision is interpreted by the
Court in a particular manner and directions are issued for implementing
D the judgment in the light of the interpretation placed on the statutory
provisions, the Legislature need not pass a validating Act. In this situation,
the Legislature, in exercise of its plenary powers under Articles 245, 246
and 248, can make a new Act altering fundamentally the provisions which
were the basis of the judgment passed by the Court. This can be done with
E retrospective effect. So far as service conditions are concerned, they can
be altered with retrospective effect by making service rules under Article
309 or by an Act of the Legislature. [580-A-C]
F
2.3. In the instant cases, the judgments rendered by this Court in the
earlier decisions relating to the seniority of the present incumbents were
founded on the service rules then existing. These service rules have since
been replaced by the Haryana Service of Engineers, Class I Public Works
Department (Buildings and Roads Branch) Respectively Act, 1995, which
has been enforced with retrospective effect. The rule of seniority has been
altogether altered and replaced by a new law made with retrospective effect
G so as to do away with the mischief under which an undue advantage was
being provided to a direct recruit, which was wholly inequitous and not
sustainable on the principles of equity. The Act is valid, except the expression in s. 25, i.e. "to the ext~nt that these rules shall continue to apply to
the persons who are members of the Service before 1st day of November
H 1966", which is invalid. [580-C-F]
..
S.S. BOLA v. B.D. SARDANA
521
Comorin Match Industlies (P) Ltd. v. State of Tamil Nadu, [1996) 4 A
SCC281; Indian Aluminium Company v. State of Kera/a, [1996) 7 SCC 637
and Meerut Development Authority & Ors. v. Satbir Singh & Ors., [1996) 11
sec 462, relied on.
3. The judgments of the Punjab & Haryana High Court are liable to
be set aside, with a direction to the State Government to re-determine the B
question of seniority in the light of this judgment and the Act. [580-G]
Per K Ramaswamy, J.
1.1. The Legislature of Haryana was competent under Article 309 or
Entry 41 of List II (State List) of the Seventh Schedule to the Constitution C
to enac4he Haryana Service of Engineers Class I Public Works Depart·
ment, (Buildings and Roads Branch), (Public Health Branch) and (Irriga·
tion Branch) Respectively Act, 1995. But, since the Act has with
retrospective effect, in substance and in effect, declared the law laid down
by this Court in the cases of Sehgal * and * Chopra as unenforceable by D
an indirect side track process of legislative fiat, it is unconstitutional.
[681-F-G; 682-A·B]
A.N. Sehgal and Ors. v. Raje Ram Shesoran and Ors., [1992) Supp. 1
SCC 304; S.L. Chopra & Ors. v. State of Ha1yana and Ors., [1992) Supp. 1
sec 391, referred to.
E
1.2. The Punjab Service of Engineers Class I Public Works Depart·
ment (Buildings and Roads Branch) Rules, 1960 and the Punjab Service
of Engineers Class I Public Works Department (Public Health Branch)
Rules, 1961, to the extent they are applicable to State of Haryana, !!OW
repealed, as interpreted by this Court in Sehgal and Chopra's cases, is the F
law under Article 141 of the Constitution. It binds not only inter-parties,
but also the other wings of the State, namely, the Legislature and the
Executive and all. The mandamus issued therein along with directions to
prepare the seniority list and its implementation operates inter-patties and
binds the State of Haryana. [681·D·E]
G
1.3. The Legislature is not competent to declare with retrospective
effect that the law declared by this Court under Article 141 of the Con·
stitution in Sehgal and Chopra cases is illegal; nor is it empowered to make
the mandamus and directions issued therein as ineffective and unenforce·
able, except in certain given circumstances. (681-G-H]
H
522
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A
Madan Mohan Pathak & Anr. v. Union of India & Ors., AIR (1972)
SC 50; Janapada Sabha Chhindwara etc. v. The Central Provinces Syndicate
Ltd. & A11r. etc., [1970] 3 SCR 745; State of Tamil Nadu & Anr. v. M.
Rayappa Gounder & Ors., [1971] 3 SCC 1; Municipal Corporation of the
City of Ahmedabad etc. v. New Shorock Sug. & WVg. Co. Ltd. etc., [1971] 1
B SPG 288; /.N. Saksena v. The State of Madhya Pradesh, [1976] 3 SCR 237;
Ex. Capt. K. C. Arora & Anr. v. State of Haryana & Ors., [1984] 2 SCC 218;
State of Gujarat&Anr. v.Raman Lal Keshav Lal Soni & Ors., [1963] 2 SCC
33; State of Haryana & Ors. v. Kamal Co-operative Fonners' Society Ltd. &
Ors., [1993] 2 SCC 363; Cauvery Water Disputes Tribunal [1993] Supp. 1
SCC 96; S.R. Bhagwat & Ors. v. State of Mysore, [1995] 6 SCC 16; Delhi
C Cloth & General Mills Co. Ltd. & Anr. v. State of Rajasthan & Ors., [1996]
2 SCC 449; Peddinti Ve11kata Muraliranganatha Desika Iyengar & Ors. v.
State of A.P. & Anr., [1996] 3 SCC 75; K Sa11kara11 Nair (Dead) through
Lrs. v. Devaki Amma Malathy Amma & Ors., [1996] XI SCC 428, relied on.
2.1. Judicial review is the basic feature of the Constitution which has
D been entrusted to the constitutional Courts, namely, the Supreme Court
of India and High Courts under Article 32 and Articles 226 and 227
respectively. Judicial review passes upon constitutionality of legislative
Acts or administrative actions. The Courts either would enforce valid
Acts/actions or refuse to enforce them when found unconstitutional. It is
E the constitutional duty and responsibility of the constitutional Courts, as
assigned under the Constitution, to maintain the balance of power between
the Legislature, the Executive, and the Judiciary. In a Parliamentary
democracy, for the constitutional democracy to remain a living moral and
intellectual force, it would be enforced through judicial review z.s an arch
F of democracy and rule of law. [682-C-E]
G
,Special Refere11ce No. 1 of 1964 [1965] 1 SCR 413; Mi11e1va Mills v.
U11io11 of India, [1980] 3 SCC 625; L. Chandra Kumar v. U11ion of India,
[1997) 3 SCC 216; S.R. Bommai v. U11io11 of I11dia, [1994) 3 SCR 1 and
Kihoto Hollohan v. Zachillhu a11d Ors., [1992] Supp. 2 SCC 651, followed.
C. Ravicha11dran Iyer v. A.M. Bhattacharjee, [1995] 5 SCC 457 and
Kartar Si11gh v. State of Punjab, [1994] 3 SCC 569, referred to.
2.2. In adjudging the constitutionality of an Act or action, the Court
is required to carefully scan the impugned law to find out (a) whether the
H vice pointed out by the Court or the invalidity suffered by the previous law
-·
S.S. BOLA v. B.D. SARDANA
523
is cured complying with the legal and constitutional requirement, (b) A
whether the legislature has competence to enact the law to validate the law,
and (c) whether such enactment of Act or validation is consistent with the
constitutional principles or within limitations set by the Constitutional or
fundamental rights enshrined in Part III of the Constitution. The Court
can take into account the real consequences while judging the width of the B
power; the Court cannot ignore the consequences flowing from particular
construction ascertaining the limits of the provisions that granted the
power. [683-C-F; 684-C-E]
3.1. Separation of power among the Legislature, the Executive and
the Judiciary is also basic feature of the Constitution. [636-A]
C
His Holiness Kesavananda Bharati Sripadagalavam v. State of Kerala,
[1973] Supp. SCC 11, followed.
3.2. The Legislature in enacting new law or amending the existing
law or revalidating the law has power to alter the language in the statute D
by employing the appropriate phraseology and to put up its own interpretation inconsistent with that put up by the Court in au earlier judgment
on the basis of the pre- existing law and to suitably make new law, amend
the law or alter the law removing the base on which the previous decision
was founded. The changes or altered conditions have to be such that the
previous decision would not have been rendered by the Court had those
conditions existed at the time of declaration of the law in the previous
decision as invalid. It is also empowered to give effect to the Acts so
enacted or revalidated prospectively or retrospectively with a deemed date
E
or with effect from a particular date.